Inhabitants of Town of Essex v. Brooks

• Decision Date: 21 June 1895
• Citation: 164 Mass. 79,41 N.E. 119
• Parties: INHABITANTS OF TOWN OF ESSEX v. BROOKS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 79

41 N.E. 119

INHABITANTS OF TOWN OF ESSEX v. BROOKS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1895

COUNSEL

Frank C. Richardson, for plaintiff.

A.S Hall, for defendant.

OPINION

MORTON, J.

The defendant raises a preliminary question of jurisdiction. He contends that the probate court has sole jurisdiction subject to appeal to this court, of the question whether the legacies are subject to a tax under St.1891, c. 425. He bases this contention on the provisions of section 14 of that act. We do not so construe the statute. By Pub.St. c. 136, § 19 it is provided that "every legatee may recover his legacy in an action at common law." There is nothing in St.1891, c. 425, which expressly or by implication repeals that provision. The only effect of section 14 is to confer upon the probate court in which the estate of a decedent is in process of settlement jurisdiction to hear and determine any question that may arise relating to any devise, legacy, or inheritance under the act, but does not take away the right of the legatee to sue at common law in the superior court, and have the question heard and determined there whether the legacy is subject to a tax. The executor had an opportunity to try the question in the probate court, and, not having availed himself of that opportunity, he cannot now object that the superior court had no jurisdiction, or insist that its judgment will not avail him in the settlement of his accounts in the probate court. Upon the petition of the executor, a citation was issued by the superior court summoning in the treasurer of the commonwealth after a hearing upon and overruling of the defendant's demurrer. The treasurer at first objected to being made a party, but afterwards withdrew his objection, and a hearing was had on the petition, and it was dismissed. No appeal or exception was taken to the overruling of the demurrer or dismissing of the petition, and the question is not, therefore, before us whether the ruling changing the petition was correct. It is said, and it appears, inferentially perhaps, from the papers, that the time has gone by within which the treasurer could bring suit to recover the tax, and we proceed to consider the main question, which is whether the legacies are exempt from taxation. By St.1891, c. 425, § 1, all property within the commonwealth which shall pass by will or by intestate succession, or by deed, grant, sale,...