White v. Town of Portland

• Decision Date: 21 February 1896
• Citation: 34 A. 1022,67 Conn. 272
• Court: Connecticut Supreme Court
• Parties: WHITE et al. v. TOWN OF PORTLAND.

34 A. 1022

67 Conn. 272

WHITE et al.

v. TOWN OF PORTLAND.

Supreme Court of Errors of Connecticut.

Feb. 21, 1896.

Appeal from superior court, Middlesex county; Robinson, Judge.

Application by Josiah J. White and another for relief from the act of the board of relief of the town of Portland refusing to grant redress in the matter of an assessment on certain real estate. A demurrer to the application was sustained, and plaintiffs appeal. Affirmed.

William L. Bennett, for appellants.

John R. Buck and John M. Murdoch, for appellee.

TORRANCE, J. This is an application for relief, under section 3860 of the General Statutes, from the doings of the board of relief of the town of Portland. The town demurred to the application, the superior court sustained the demurrer and dismissed the case, and from that judgment the plaintiffs took the present appeal.

From the facts alleged in the application, which are in effect admitted by the demurrer, it appears that the tax assessment in question was made in 1893 upon certain real estate, which the assessors of Portland set in the list of the "estate of Eliza T. White"; that she died, intestate, in October, 1891; that one of the plaintiffs, Josiah J. White, is the husband of the deceased, Eliza T. White, claiming an interest in the whole of said real estate, as tenant by the curtesy; and the other, Frederick Hall White, is her only child and sole heir, claiming, as such heir, the remainder in said real estate. The application further alleged, in substance, that said real estate had been improperly assessed, and assessed greatly in excess of its true market value; that application had been properly made to the board of relief for redress, which had been refused; and that the applicants were aggrieved by such action of said board.

Among the causes of demurrer was one for misjoinder of parties, and as that appears to have been well taken, and to be decisive of the present appeal, the discussion will be confined chiefly to that point. This question arises principally upon the first paragraph of the application, which reads as follows: "That said Josiah J. White is the husband of the late Eliza T. White, who died, intestate, on the 23d day of October, 1891, leaving said Josiah J. White as tenant by the curtesy, and said Frederick Hall White as sole heir to the remainder, of certain real estate hereinafter mentioned and set forth, which said real estate is located and situate in the town of Portland, in said Middlesex county." The defendant demurred, "because it is not alleged and does not appear that said J. J. White and Frederick Hall White are either tenants in common or joint tenants of the property set in the list of the estate of Eliza T. White." The plaintiffs claim that the above paragraph of the application sufficiently shows that, at the time of the acts complained of, Josiah J. White was tenant by the curtesy of all of said real estate, and was in possession thereof as such tenant, and that Frederick Hall White was the sole owner of the remainder interest therein, and that from this it follows that they can together bring this application. If, for the purposes of discussion, the first part of this claim is conceded, it by no means necessarily follows that the plaintiffs can join in this proceeding. If, under the circumstances disclosed by the record, it was the duty of the tenant by the curtesy to pay all taxes that might be assessed upon the real estate in question; if said taxes could only be collected from him, and only his property and estate could be taken, or subjected to a lien, therefor; and if the other plaintiff and his property could under no circumstances be made liable for such taxes,—then it would follow that Frederick Hall White has no interest whatever in this proceeding, and is a mere stranger to the matters complained of. And that this is his true relation to the case appears to be quite clear. As tenant for life, it was the duty of Josiah J. White to pay all taxes that might be laid upon this real estate after the death of his wife, and during his tenancy. "It may be laid down as a duty uniformly incumbent upon a tenant for life to pay all taxes assessed upon the land during his life." 1 Washb. Real Prop. p. 126; Tied. Real Prop. § 68. "Tenants by curtesy hold their estates subject to the duties, limitations and obligations which attach to those of ordinary tenants for life." 1 Washb. Real Prop. p. 183.

Section 3845 of the Revised Statutes of this state provides that when, as in this case, the real estate is, as claimed by the plaintiffs, in possession of a tenant for life, and another person is entitled to the "ultimate enjoyment" of it, "such estate shall be set in the list" of the tenant for life in possession, "except when it is specially provided otherwise." In this case it was the duty of the assessors, under this section, when they made out the list in question, to set said real estate in the list of Josiah J. White, and not in the name of the estate of Eliza T. White. It is true that section 3844 of the General Statutes provides that the estate of any deceased person not distributed or finally disposed of by the court of probate may be set in the list in the name of such estate, or of the administrator or executor; and section 577 provides that the executors and administrators of deceased persons, during the settlement of the estate, shall have the possession, care, and control of...