Parsons v. Inhabitants of Town of Lenox

• Decision Date: 25 September 1917
• Parties: PARSONS v. INHABITANTS OF TOWN OF LENOX.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 231

117 N.E. 197

PARSONS

v.INHABITANTS OF TOWN OF LENOX.

Supreme Judicial Court of Massachusetts, Berkshire.

Sept. 25, 1917.

Report from Superior Court, Berkshire County; Charles F. Jenney, Judge.

Proceedings by Florence V. C. Parsons, executrix of the estate of David W. Bishop, deceased, against the Inhabitants of the Town of Lenox. Case reported. Complaint dismissed, and judgment for defendant.

Herbert Parker, of Boston, Chas. E. Hibbard, of Pittsfield, and Thos. D. Hewitt, of New York City, for complainant.

George A. Mole, of Lenox, and Noxon & Eisner, of Pittsfield, for respondent.

CARROLL, J.

This is a complaint under St. 1909, c. 490, pt. 1, § 77, for an abatement of taxes for the year 1912, assessed upon the estate of David W. Bishop, a resident of Lenox in this commonwealth, who died in Paris, France, December 1, 1911. The complainant is the mother of the testator and the executrix of his will, which was proved and allowed in the Surrogate's Court of the county of New York in the state of New York, on or about March 7, 1912, and in the probate court for Berkshire county, February 4, 1913.

The assessors of the respondent town, on or about April 1, 1912, caused to be posted in three public places in Lenox, notices requiring lists of property to be brought to them on or before May 15, 1912. St. 1909, c. 490, pt. 1, §§ 41, 42, 43; St. 1909, c. 515. No list was filed with the assessors by the complainant within the time stated in the notice. In December, 1912, a list was mailed from New York City, where Mrs. Parsons, the complainant, resided, directed to the assessors of Lenox. This list was not sworn to and subsequently was withdrawn for corrections. A second list, sworn to before a notary public, was filed with the assessors January 10, 1913; and a third list, sworn to before a notary, was filed in March, 1913.

At the time of the annual assessment, in addition to an assessment of real estate, furniture and tangible property which is not in dispute, an assessment was made ‘of other ratable personal property’ in the sum of $500,000, representing a tax at the Lenox tax rate for 1912 of $5,500. A second assessment of $500,000 of personal property, omitted from the former assessment, was made within the time required by St. 1909, c. 490, pt. 1, § 85, and St. 1911, c. 89. See Gannett v. Cambridge, 218 Mass. 60, 105 N. E. 447. It is in connection with the two assessments of $500,000 each and the tax of $11,000, that these proceedings were commenced. The tax bill for $5,500 on the first assessment was sent September 1, 1912. The bill for the omitted assessment was sent on or before January 1, 1913. The value of the estate was found by the commissioner to be $450,569.91, as stated in the third list filed. In March, 1913, following the filing of the last list, the complainant petitioned for an abatement, in consequence of which the tax of $11,000 was reduced by the sum of $3,549.21. This tax, as abated, was paid under protest on May 31, 1913.

It was found by the commissioner that the testator's personal property, ‘at the time of his death and until the close of his estate was physically situated outside the commonwealth of Massachusetts, except for an undivided half interest in certain furniture and other household effects located on the real estate in Lenox.’ ‘He [the testator] had at the time of his death, considerable property in France, and his other tangible property, as well as all his securities, were physically present at the time of his death, until his estate was closed in New York county, in the state of New York.’

On the 3d of April, 1912, the complainant left the United States and went to Paris, where she was engaged in the collection, management and disposition of her son's property until her return to the United States May 13, 1912. The testator's ‘affairs in France [were] in such shape as to require her [the complainant's] attention and presence.’ The commissioner found that the complainant did not have a full and accurate knowledge of the property and estate of the testator until after May 15, 1912, and could not before that time, have made a ‘full, complete and accurate list of all such property’; that she had ‘a reasonable excuse for failure to file the list before May 15, 1915.’

No finding was made that there was good cause for the delay subsequent to May 15 and continuing until January 10, 1913, when the first sworn list was filed with the assessors. It also appears that Mrs. Parsons came to Lenox early in June, 1912, and remained there until October 1, of that year.

[1] Where a taxpayer seeks an abatement of an excessive tax before the assessors (unless the tax exceeds by more than 50 per cent. the amount which would have been assessed if the list had been seasonably brought in), no part of the tax assessed on his personal property shal be abated if he has failed to file the list within the time specified in the notice, under St. 1909, c. 490, pt. 1, § 41 (see now St. 1914, c. 198, § 5), unless he shows to them ‘a reasonable excuse for the delay’ (St. 1909, c. 490, pt. 1, § 73).

[2] On appeal, either to the county commissioners or to the superior court, no abatement of the tax shall be made if the list required to be returned to the assessors was not brought in within the time specified in section 41, unless it is found ‘that there was good cause for the delay,’ or unless the assessors have so found. St. 1909, c. 490, pt. 1, §§ 76, 77.

[3] The filing of the list within the specified time is a condition precedent to the abatement of an excessive tax, unless there was a reasonable excuse or good cause for the delay. Sears v. Nahant, 205 Mass. 558, 91 N. E. 913;Charlestown v. Middlesex Co. Com'rs, 101 Mass. 87.

The time for filing the list expired May 15, 1912. If we assume, on the findings of the...