Whiton v. Balch
| Decision Date | 23 November 1909 |
| Citation | 203 Mass. 576,89 N.E. 1045 |
| Parties | WHITON v. BALCH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Rebort E. Burke and E. E. Crawshaw, for appellant.
Charles B. Barnes, Jr., and Edwin H. Abbot, Jr., for appellee.
By Rev Laws, c. 13, § 33, it is provided that if a tax is assessed upon the estate of a deceased person and a demand therefor is made upon the executor of his will, and after receiving money applicable thereto the executor does not pay the tax, he 'shall be personally liable therefor as for his own tax.'
The action in this case is brought to enforce this liability by reason of a tax assessed upon the defendant as 'an executor of the estate' of one James N. Balch, who is alleged in the declaration to have died a resident of Newburyport. The defendant filed two answers in abatement. In the first he pleaded that the will of James N. Balch never had been proved in this commonwealth and no administration or letters testamentary ever had been issued to him (the defendant) by any probate court of this commonwealth, and that he 'is not and never has been executor or administrator of said James N. Balch within this commonwealth.' In the second answer in abatement the defendant alleged that the will of James N. Balch was admitted to probate in the Surrogate's Court of Kings county, in the state of New York; that letters testamentary were issued to Sarah L. Balch, Horace L. Balch and the defendant jointly; and that 'if, by virtue of said appointment in the Surrogate's Court of Kings county, in the state of New York, this defendant can be held to answer to the plaintiff as an executor of James N. Balch, the said Sarah L. Balch and Horace L. Balch, who are still alive and acting as executors, should be sued with him.'
The plaintiff demurred to the second answer in abatement and to the first answer in abatement put in the following: 'Now comes the plaintiff in the above-entitled cause and demurs to the defendant's first answer in abatement, excepting the statement therein that the defendant never has been executor of said James N. Balch within this commonwealth, which statement the plaintiff denies; and the plaintiff says that the part of said first answer which he demurs to does not set forth any legal ground for abating his writ.'
The liability imposed by the statute (Rev. Laws, c. 13, § 33) is a personal liability created because the defendant did not perform a duty imposed upon him as executor; and the writ of necessity should be, and in the case at bar is, a writ which runs against the goods and estate of the defendant personally and not against the goods and estate of the deceased in the hands of the defendant as the executor of the will of the testator.
To make out a liability against the defendant under the statute and in this action, the plaintiff must prove his allegation that the defendant was executor. If that is not the fact the defendant is not liable. That is to say, a traverse of that allegation in the declaration is the subject of what was at common law a plea in bar and is now to be set up by way of an answer to the merits. Rev. Laws, c. 173, § 20. The...
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White v. E. T. Slattery Co.
...in abatement, but in bar. A plea in abatement goes to the form of the writ; a plea in bar goes to the cause of action. Whiton v. Balch, 203 Mass. 576, 578, 89 N. E. 1045. Any fact which impeaches the form of the writ, the timeliness of the action, the capacity of the parties, or such like m......
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White v. E. T. Slattery Co.
...matter in abatement, but in bar. A plea in abatement goes to the form of the writ; a plea in bar goes to the cause of action. Whiton v. Balch, 203 Mass. 576 , 578. Any fact which impeaches the form of the writ, the timeliness of the action, the capacity of the parties, or such like matter n......
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Bartlett v. Fufts
...settlement of estates. Scollard v. Edwards, 194 Mass. 77, 78, 80 N. E. 4;Boston v. Turner, 201 Mass. 190, 87 N. E. 634;Whiton v. Balch, 203 Mass. 576, 578, 89 N. E. 1045. The record shows that the defendant as executrix has received over ‘$16,000.’ In the absence of any statement that this ......
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Means v. Leveroni
...considered, although properly a plea in bar of the action. White v. E. T. Slattery Co. 236 Mass. 28, 30, 31, 127 N.E. 597;Whiton v. Balch, 203 Mass. 576, 89 N.E. 1045;Breen v. Burns, 280 Mass. 222, 228, 182 N.E. 294. There is nothing in the record to show what evidence was before the trial ......