Sears v. Town of Nahant

• Decision Date: 22 June 1915
• Docket Number: 2552.
• Citation: 221 Mass. 435,109 N.E. 373
• Parties: SEARS v. TOWN OF NAHANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 435

109 N.E. 373

SEARS v. TOWN OF NAHANT.

No. 2552.

Supreme Judicial Court of Massachusetts, Essex

June 22, 1915

Report from Superior Court, Essex County; Lloyd E. White, Judge.

Action by Herbert M. Sears against the Inhabitants of the Town of Nahant. The court ruled that plaintiff was not entitled to recover, and reported the case to the Supreme Judicial Court for determination. Judgment for defendant.

COUNSEL

Tyler Corneau & Eames and Wm. C. Rice, all of Boston, for plaintiff.

Samuel H. Hudson and Philip Nichols, both of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of contract whereby one of the executors of the will of the late Frederick R. Sears seeks to recover from the town of Nahant the tax, or excess above what he contends that the tax ought to have been, levied on the estate for the year 1909, and collected of him as one of four executors. No list of property was filed for that year by the executors at any time. No petition for the abatement of the taxes for that year ever has been filed. It is manifest from the agreed facts that the executors were liable that year to be assessed at least for the property originally held by them as executors, which they had attempted to distribute to themselves as trustees under the will before their accounts as executors had been duly filed, allowed and Hardy v. Yarmouth 6 Allen,

277. See Welch v. Boston, 211 Mass. 178 97 N.E. 893; where all the earlier cases are reviewed. The executors in 1909 were taxable under the law in Nahant at the least for the portion of the estate devised to them as trustees. In any event, a part of the tax was legal. Sears v. Nahant, 215 Mass. 329, 102 N.E. 494. Hence on the aspect of the case most favorable to the plaintiff on his own contention, the tax was not wholly illegal but only excessive in amount. Scarcely any proposition in the law of taxation is more firmly settled than that an action of contract does not lie to recover back any part of a tax too heavy by reason of a simple over-assessment. It is immaterial whether the over-assessment arises either from too high valuation of property actually owned, or by the inclusion of other property not owned for which no tax ought to be levied. The sole remedy in such case is that provided by the statute by way of abatement. That remedy is adequate, plain, complete, and expeditious. It is direct and simple. It affords ample opportunity for hearings before competent and impartial tribunals. It is...