Marble v. Jackson

• Decision Date: 05 June 1923
• Citation: 245 Mass. 504,139 N.E. 442
• Parties: MARBLE v. JACKSON, State Treasurer, etc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 504

139 N.E. 442

MARBLE

v.JACKSON, State Treasurer, etc.

Supreme Judicial Court of Massachusetts, Worcester.

June 5, 1923.

Appeal from Probate Court, Worcester County; Frederick H. Chamberlain, Judge.

Proceeding by Emily G. Marble against James Jackson, Treasurer and Receiver General, for abatement of a tax. The tax was abated, and defendant appeals. Reversed, and petition dismissed.

The petition alleged that the petitioner was the widow of J. Russell Marble; that the executors had made an affidavit of debts and expenses to the tax commissioner and therein had stated that there were certain savings bank deposits not coming into their hands, standing in the name of decedent, or the petitioner, or the survivor, and others in the name of petitioner and the decedent, or the survivor; that thereupon the tax commissioner imposed a tax of $242.62 on one-half the balances in such deposits; and that such tax was wrongly exacted. The answer admitted the allegations of the petition, except the allegation that the tax was wrongly exacted, and alleged that it was assessed in accordance with law. The case was heard on an agreed statement of facts, and the tax abated.J. Weston Allen, Atty. Gen., and Charles R. Cabot, Asst. Atty. Gen., for appellant.

Smith, Gage & Dresser and T. H. Gage, all of Worcester, for appellee.

CARROLL, J.

J. Russell Marble died October 8, 1920. At this time there were deposits in six Massachusetts savings banks, aggregating $9,705.14. None of these deposits came into the possession of the executors under the will of J. Russell Marble. It was agreed that Mr. Marble contributed to the joint accounts. The tax in question was assessed on one-half of the balances, $4,852.57, of the six above-mentioned deposits. The petitioner, who is the widown of the decedent, in November, 1921, paid a tax, amounting to $242.62 and interest, and brought this petition for an abatement under G. L. c. 65, § 27. In the probate court a decree was entered ordering an abatement of the tax, and the defendant appealed.

General Laws, c. 65, § 1, after reciting that all property within the jurisdiction of the commonwealth, and any interest therein which shall pass by will or by laws regulating intestate succession, or by deed, grant or gift intended to take effect in possession or enjoyment after the death of the grantor or donor, provides:

‘And any beneficial interest therein which shall arise or accrue by survivorship in any form of joint ownership’ shall be subject to a tax.

The phrase quoted became a part of the law by St. 1916, c. 268, § 1. Prior to the passage of this amendment it was held, where real estate was owned by husband and wife as tenants by the entirety, that no new estate passed on the death of either to the survivor which was taxable under the laws regulating intestate succession. Palmer v. Treasurer and Receiver General, 222 Mass. 263, 110 N. E. 283, L. R. A. 1916C, 677. It was also decided that the interest, which on the death of one of two joint tenants in real or personal property belongs to the other by right of survivorship, does not pass by the laws regulating intestate succession within the meaning of the inheritance tax statute, and its transfer is not subject to the tax imposed by the statute. Attorney General v. Clark, 222 Mass. 291, 110 N. E. 299, L. R. A. 1916C, 679, Ann. Cas. 1917B, 119. See Chippendale v. North Adams Savings Bank, 222 Mass. 499, 502, 111 N. E. 371. Following these decisions the amendment, ‘any beneficial interest therein which shall arise or accrue by survivorship in any form of joint ownership,’ St. 1916, c. 268, § 1, was passed, and we assume in the consideration of this case that this phrase refers to the first part of this section-‘all property within the jurisdiction of the commonwealth, corporeal or incorporeal.’

Five of thd deposits were as follows:

Fitchburg Savings Bank: ‘J. Russell Marble or Emily G. Marble. * * * Subject to withdrawal of whole or part by either or the survivor of either.’

Athol Savings Bank: ‘J. Russell Marble or Emily G. Marble. Payable to either or the survivor.’

Whitinsville Savings Bank: ‘J. Russell Marble or Emily G. Marble. * * * Subject to withdrawal of whole or part by either or the survivor of either.’

Springfield Five Cent Savings Bank: ‘J. Russell Marble and Emily G. Marble. * * * Subject to withdrawals of whole or part by either or survivor of either.’

Springfield Institution for Savings: ‘J. Russell Marble and Emily G. Marble. * * * Subject to withdrawal of whole or part by either or survivor of either.’

An estate by the entirety may exist in personal property. Boland v. McKowen, 189 Mass. 563, 76 N. E. 206,109 Am. St. Rep. 663;Phelps v. Simons, 159 Mass. 415, 34 N. E. 657,38 Am. St. Rep. 430. A joint tenancy may be created in personal as well as in real estate. Attorney General v. Clark, supra. And the personal property may consist of a deposit in a savings bank. Chippendale v. North Adams Savings Bank, supra. In our opinion, none of the five deposits in question constitute an estate by the entirety, or a joint tenancy, in the accurate sense of the term. In an estate by the entirety one of the owners cannot sever the tenancy during the joint lives without the consent of all. Palmer v. Treasurer and Receiver General, supra. And although a joint tenancy may be terminated by the transfer or conveyance of his interest by one of the tenants, each tenant can dispose of only his own interest in the property. Attorney General v. Clark, supra. By the express terms of these five deposits, either the husband or the wife had the right, during the lifetime of both, to withdraw any part or the whole of the fund on his or her single receipt or order, and thereby terminate the tenancy without the consent of the other, although both were living. This right violates the essential character of a joint tenancy or an estate by the entirety. The estate created by these deposits was at most analogous to a joint tenancy, and was not a joint tenancy in the accurate meaning of those words. In our opinion, a tax can be levied by reason of the death of one of the quasi joint tenants under G. L. c. 65, § 1, which places a tax on ‘all property within the jurisdiction of the commonwealth,’ and ‘any beneficial interest therein which shall arise or accrue by survivorship in any form of joint ownership.’

By reason of the death of Mr. Marble, Mrs. Marble alone now has an interest in these deposits arising or accruing by her survivorship, which she did not have before. That beneficial interest is the absolute title to the deposit, free from the pre-existing right, absolute in its terms, which Mr. Marble undoubtedly possessed during his life to withdraw the whole or any part of these deposits on his individual receipt, and to dispose of the money on his individual account. These deposits vested in the complete possession and enjoyment of Mrs. Marble on the death of her husband; there resulted to her upon his death, for her sole beneficial interest, a complete cessation of his power to exercise any control over the deposits, or to enjoy any benefit from them, and this interest which accrued to her by survivorship in this ‘form of joint ownership’ and which she now has...