Lynde v. Brown

• Decision Date: 08 January 1887
• Citation: 143 Mass. 337,9 N.E. 735
• Parties: LYNDE v. BROWN and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 337

9 N.E. 735

LYNDE v. BROWN and others.

Supreme Judicial Court of Massachusetts, Middlesex.

January 8, 1887

COUNSEL

W.P. Harding, for plaintiff.

The legality of the assessment of the tax upon the estate for the year 1881 depends upon the true construction of Pub.St. c 11, § 13.Did the defendantMargaret Brown have such a status, in reference to said estate, as to bring her within the purview and meaning of the statute authorizing or justifying the assessors to assess the estate to her name?It does not appear that either the daughter or her infant, the grandson, was ever in actual occupancy or possession of the estate, or that they, or their legal representatives, ever objected to Margaret's possession or occupancy, or to her receiving the rents from the tenant and defendant Foley, or that they ever paid the taxes assessed since the death of Patrick Gillespie, or notified the assessors to assess to the heir.But it does appear that the widow, Margaret, had a right of dower in the entire estate; that the daughter, the only heir, permitted her mother to have the management possession, and control of the estate after her father's death.It is submitted, therefore, that, (1) though the legal title stands in the name of another, it is a valid assessment, if assessed to one in actual possession, ( Oakham v. Hall,112 Mass. 538;Desmond v Babbitt,117 Mass. 234;)(2) a tax assessed to an agent who was in actual occupation is valid, (Wells v. Battelle,11 Mass. 477.)

Wm. Schofield, for defendants.

Taxes on real estate must be assessed to the owner, or person in possession, on the first day of May.Pub.St. c. 11, § 13;Desmond v. Babbitt,117 Mass. 233;Kearns v. Cunniff,138 Mass. 434.The defendantMargaret Brown was not the person in possession.At the time of the assessments, under which the several sales were made, the demanded premises were occupied by Foley, who was a tenant at will, and therefore had possession.Dickinson v. Goodspeed, 8 Cush. 119;Hilbourn v. Fogg,99 Mass. 11;Cunningham v. Horton,57 Me. 420.Neither was Margaret Brown the owner.Upon the death of Patrick Gillespie, in 1864, the inheritance descended to the heirs at law, and the rights of the widow are to be determined by the laws in force at that time.Gen.St. c. 90, § 1;Id.§ 15.By law Margaret Brown had only a right of dower; and dower is not an interest in lands until it is assigned.Sheafe v. O'Neil,9 Mass. 13;Foster v. Gorton, 5 Pick. 185;Croade v. Ingraham,13 Pick. 33;Sears v. Sears,121 Mass. 267, 268;Mason v. Mason,140 Mass. 63;S.C.3 N.E. 19; 2 Scrib.Dower, (2d Ed.) 42-44, et seq.Margaret Brown has not become owner by disseizin, for there has been no ouster, and no adverse possession.Being administratrix of her husband, she leased the property as agent of the heir at law, and has accounted for the rents and profits.Gen.St. c. 98, § 8;Pub.St. c. 144, § 5;Brooks v. Jackson,125 Mass. 307;Choate v. Arrington,116 Mass. 552;Almy v. Crapo,100 Mass. 218.See, also, Silva v. Wimpenney,136 Mass. 253.

OPINION

W. ALLEN, J.

Pub.St. c. 11, § 13, provides that, "for the purpose of assessing and collecting taxes, the persons appearing of record as owners of real estate shall be held to be the true owners thereof.Taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner, or in possession thereof, on the first day of May."Sections 18and19 provide for assessing the undivided estate of a deceased person in certain cases, but these provisions were not acted on, and are immaterial, except as showing that a simple and easy mode of making a correct assessment was provided.

The only interest or right in the land which Mrs. Brown had, was a right to have dower...