Curley v. New England Trust Co.
| Decision Date | 27 May 1915 |
| Citation | 221 Mass. 384,109 N.E. 171 |
| Parties | CURLEY v. NEW ENGLAND TRUST CO. TOWER v. SAME |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Report from Superior Court, suffolk County; Marcus Morton, Judge.
Actions by John J. Curley, tax collector of the city of Boston, and by Newcomb B. Tower, tax collector of the town of Cohasset against the New England Trust Company, assignee of Albert S Bigelow. The court found for plaintiff in the first case, and for defendant in the second case, and reported both cases on the pleadings, evidence, findings, rulings, and refusals to rule for the consideration and determination of the full court. Judgment ordered for plaintiff in the first case and for defendant in the second case.
Joseph P. Lyons, of Boston, for plaintiff Curley.
Albert P. Worthen, of Boston, for plaintiff Tower.
Tyler Corneau & Eames and William C. Rice, all of Boston, for defendant.
These two actions are brought, one by the tax collector of the city of Boston and one by the tax collector of the town of Cohasset, to recover a tax assessed by the assessors of the respective municipalities as of April 1, 1913, on certain personal property held by the defendant under an indenture of trust, dated March 18, 1910, given by Albert S. Bigelow, a resident of Cohasset, under which instrument the defendant has been acting continuously from the time of the delivery to it of such property on some date between March 18, 1910, and April 15, 1910, to the time of the trial in the superior court. The question involved is whether the personal property in the possession of the defendant trust company under the indenture was taxable by the city of Boston or by the town of Cohasset on April 1, 1913.
The issues raised by the pleadings and at the trial were:
'(1) Whether said indenture was an assignment for the benefit of creditors within St. 1909, c. 490, pt. 1, § 23, cl. 8.
'(2) If said indenture was an assignment within said statute, then whether the controlling date to which the inquiry as to the principal place of business of the assignor relates is the date of said assignment, or April 1, 1913, the date on which the liability of said property to tax for the year 1913 attached; and
'(3) Whether said Albert S. Bigelow had his principal place of business in Boston within the meaning of said statute on the date which the court shall deem controlling.'
St. 1909, c. 490, pt. 1, § 23, cl. 8, is as follows:
1. The deed of trust was dated March 18, 1910, and was between Albert S. Bigelow, as maker, the New England Trust Company, as trustee, and the corporations, firms and individuals who became parties thereto as beneficiaries. It provided that, whereas two suits, brought against the maker by the Old Dominion Copper Mining & Smelting Company, had gone to final decrees in the Supreme Judicial Court of Massachusetts, and the two writs of error issued therein had been entered in the Supreme Court of the United States, and in such writs no supersedeas bonds had been given, 'therefore, and for other reasons, this indenture of trust is made advisable.'
It purported to sell and assign to the trustee all of the property and estate of the maker, except property in Massachusetts, which would be exempt from attachment or from being taken on execution, and excepting leaseholds, or other interests, which the trustee might deem it undesirable to accept, and also excepting the power of appointment given to the maker by the will of his father.
The value of the assets which passed to the trustee under the indenture was approximately $1,938,183.72. The amount of the decrees in the two suits of the Old Dominion Copper Mining & Smelting Company was $2,182,839.46, and the claims of the other creditors approximated $165,500. All of Bigelow's creditors, including the Old Dominion Copper Mining & Smelting Company, assented to the assignment.
The deed gave to the trustee full power to hold the property, with the right to sell the same when, in the opinion of the trustee, it was good business judgment so to do, to carry out the maker's obligations under certain underwriting agreements, and, at the termination of the pending litigation above referred to, to convert the property into cash and distribute it to the assenting creditors substantially in accordance with the provisions of the Bankruptcy Act; the remainder, if any, to be paid to the assignor, no distribution being authorized until all proceedings under said litigation were terminated, final judgments or decrees entered against the maker, and the creditors agreeing not to bring or prosecute any suit or action against the maker or the trustee on account of any existing claim against the maker.
It also provided, in case of bankruptcy proceedings within four
months from its date, that the trustee there under was to surrender the property to the trustee in bankruptcy, and that all creditors might become parties thereto by signifying their assent within sixty days.
There were also many other sections in the agreement providing for the rights of the respective parties.
'Assignments for the benefit of creditors are transfers * * * by debtors, of some or all of their property to an assignee or assignees, in trust to apply the same, or the proceeds thereof, of the payment of some or all of their debts, and to return the surplus, if any, to the debtor.' Burrill on Assignments, c. 1, § 2.
Considering all the stipulations and the whole purpose of the instrument we are satisfied that it was intended between the parties to be and was under the statute of 1909 for purposes of taxation an assignment...
To continue reading
Request your trial