Howe v. Howe

• Decision Date: 17 October 1901
• Citation: 61 N.E. 225,179 Mass. 546
• Parties: HOWE v. HOWE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 546

61 N.E. 225

HOWE v. HOWE et al.

Supreme Judicial Court of Massachusetts, Essex.

October 17, 1901

COUNSEL

J. L. Thorndike, for petitioner.

A. W De Goosh, Asst. Atty. Gen., for treasurer.

OPINION

MORTON, J.

This is a petition to the probatecourt under section 14, St. 1891c. 425, by the executor of the will of James H. Carleton, late of Haverhill, for the determination of certain questions arising under said will in regard to legacy and succession taxes.The petitioner and the treasurer of the commonwealth both appealed from the decree of the probate court.The appeals were consolidated by order of the single justice, and at the request of the parties were reserved by him 'for the consideration of the full court, upon the petition and answers and the facts set forth in the decree, such order and decree to be made as to the full court shall seem meet.'The testator died in March, 1893.The will was duly proved, and executors were appointed and gave bonds in May of the same year.Subsequently the petitioner's co-executor resigned, and the petitioner has since acted, and is now acting, as the sole executor.By the residuary clause, the rest and residue was given in trust for certain purposes, and trustees were duly appointed under this clause, and gave bonds in May, 1895.This petition was filed in July, 1898, and prior to the filing of it no suit had been brought by the treasurer of the commonwealth for the recovery of any legacy or succession tax.The testator's estate exceeded $10,000 in value after the payment of all debts, and by his will a large part of it went to persons not within the classes exempted by the provisions of St. 1891, c. 425,§ 1, from the payment of a collateral inheritance tax.

The first question is whether, if the estate was subject to any tax, the right to collect it has been lost by the failure of the treasurer to bring suit therefor within two years and six months after the executors and trustees gave bonds.The probate court ruled that it had not, and we think that the ruling was right.

The petitioner contends that the effect of so much of section 4 as provides that all taxes shall be due and payable at the expiration of two years, and of so much of section 18 as provides that the treasurer shall bring suit within six months after the taxes are due and payable, is to establish two years and six months from the giving of bonds by the executors, administrators, and trustees as a limit to the right of recovery.But we think that the provision in regard to the treasurer is directory merely, and that, if it had been intended to limit the right of recovery to two years and six months after the giving of bonds by executors, administrators, or trustees, language clearly expressing that purpose would have been used, it seems to us, as in the cases of the statute limiting actions against executors and administrators and of the general statute of limitations.Pub. St. c. 136, § 9;Id.c. 196, § 1.The statute provides (section 1, c. 425, St. 1891) that administrators, executors, and trustees shall be liable for the taxes, with interest till paid, and section 4 that the taxes shall be a lien on the property subject to them till they are paid.There are also provisions that on specific legacy subject to the tax shall be delivered by the executor until he has collected the tax (section 5): that, when legacies chargeable upon real estate are subject to a tax, it shall be a charge upon the real estate until paid (section 6); and that no final settlement of the account of an executor, administrator, or trustee shall be allowed till all taxes have been paid (section 16).The plain import of all these provisions is that nothing except payment or a satisfaction of the tax in some form shall operate as a discharge of it or prevent its collection.The petitioner objects that, according to this construction, the treasurer can bring suit at any time, and that the lien will continue indefinitely.But, even if that were so, the legislature, having imposed the tax, well may have deemed it proper that nothing except payment should discharge it, and that the remedies provided for its collection should remain open until it was paid.Under St. 1823, c. 133, where no limit was fixed to the lien which was given, it was held in Hayden v. Foster,13 Pick. 492, that the lien continued till the tax was paid.The question whether the general statute of limitations would be applicable to a suit brought by the treasurer after six years from the time when it was due and payable is not before us, and need not be considered.SeeRich v. Tuckerman,121 Mass. 222.

The petitioner further contends that no tax can be levied in respect of the appointees of the household furniture and effects, nor in respect of the devolution of the fund of $40,000, if Gurdon S. Howe should die before reaching the age of 45.The household furniture and effects were bequeathed to the testator's sister, Mary C. Flint, for life, with directions that upon her death the same should be distributed as she and one Susie B. Sanders should appoint.The life estate of Mrs. Flint was not taxable, and it was not ascertained till more than two years and six months after the executors and trustees had given bonds who the appointees were or whether they were exempt.We infer, thought it is nowhere distinctly stated in the record, that none of them come within the exempted classes.The $40,000 was given to the petitioner in trust to pay the income to Gurdon S. Howe till he arrived at the age of 45, and then to pay over the principal to him.If he dies before reaching that age, then the principal is to go to such heirs of his body as shall be living when he would have reached the age of 45, and, in default of such heirs, then to his widow for life, with remainder to two institutions exempt from taxation.It is admitted that the interest of Gurdon S. Howe until he attains the age of 45 years is subject to the tax.

The contention of the petitioner in respect to these matters is that is was not ascertained, till after the expiration of the time when taxes provided for by the statute are due and payable, who the appointees of the furniture and effects were, and that until Gurdon S. Howe arrives at the age of 45 years or dies it is uncertain and contingent in whom the fund of $40,000 will vest, and therefore in neither case is any tax collectible.There is no provision in the statute relating specifically to interests that vest after the death of a testator, and before the expiration of two years or two years and six months from the giving of bonds by executors, administrators, and trustees, and the contention of the petitioner is, in substance and effect, that only those interests which vest at the death of the testator are taxable, and that future and contingent interests are not taxable.

The treasurer of the commonwealth objects that the life interest of Mrs. Flint should be determined according to the time that she actually lived, and not according to 'actuaries' combined experience tables, and four per cent. compound interest,' as provided in the concluding sentence of section 13, c. 425, St. 1891.The probate court ruled that the future interest in the household furniture and effects was subject to a tax, and that the valuation was to be ascertained by deducting the value of the life interest of Mrs. Flint, reckoned according to the combined experience tables, with compound interest at 4 per cent., as if the same had been appraised within three months after the testator's death, while she was living.In regard to the fund of $40,000, it ruled that any interest to which the two institutions may become entitled was exempt, but that any interests to which Gurdon, S. Howe will become entitled if he attains the age of 45, or to which the heirs of his body or his widow may become entitled if he dies before arriving at that age, are subject to the tax, and that such tax shall be paid by the executor when the time arrives, and that the determination of the value of such future interest be postponed until the happening of said event.We think that these rulings were right.The obvious intent of the legislature was to...