TLC 54570

January 8, 1992

Suffolk, ss.



In this matter the City of Boston requests a finding that as of December 19, 1990 the real estate taxes and other related costs due on the property located at 12 Copeland Street, Ward 12, Boston (the "Property") were $13,240.73.

The uncontested facts are as follows:

1. Harry Beach, owner and assessed owner of the Property died September 9, 1971. His will was allowed March 14, 1972, at which time the defendant Blumenthal was named executrix.

2. The will left Beach's entire estate, consisting mainly of the Property, to the Division of the Blind, an agency of the Commonwealth of Massachusetts.

3. On June 20, 1972 Ida Freeman Beach, the widow of Harry Beach, waived the provisions of the will and took the statutory widow's share under G.L. c. 191, §15. The result being she became a tenant in common of the Property with the Commonwealth. [Note 1]

4. On August 12, 1974 the City recorded an Instrument of Taking against the Property for nonpayment of taxes assessed as of January 1, 1972.

The first matter to be determined is the ownership of the Property as of January 1, 1972. Obviously the Commonwealth was an owner since title to real property of a deceased person immediately passes to the devisees where there is a will. Under the instant circumstances, however, the title of the Commonwealth was subject to a partial divestment by the action of the widow. It is accepted that when a widow waives the provision of her husband's will, the will must be interpreted as if it contained no provisions for her. Hesseltine v. Partridge, 236 Mass. 77 (1920); O'Connor v. O'Connor, 282 Mass. 506 (1933).

In this instance when Ida Beach waived the will she became a tenant in common with the Commonwealth, and as to her interest title must be deemed to have vested upon the death of Harry Beach. There is no question that her right to so act arose upon his death, and accordingly her rights in the Property had run from that time until the expiration of the statutory time limit under c. 181, §15. In a parallel situation it was held that a widow's waiver under G.L. c. 191, §15 entitled her to share not only in the fee to the real estate, but also to a share of rentals accruing after the husband's death. New England Trust Co. v. Morse, 243 Mass. 39 , 44 (1922).

I find therefore that as of January 1, 1972 Ida Beach and the Commonwealth owned the Property as tenants in common.

I agree with the City that in this instance where the Property is owned by tenants in common and where one tenant is exempt from taxes and the other is not, the Property is taxable.

There is no question that under the provisions of G.L. c. 59, §5, second clause property of the Commonwealth is exempt from taxation.

It is well established that a tenancy in common is a holding of property by several persons by several and distinct titles there being a unity of possession. Each tenant owns an undivided fraction while being entitled to an interest in every inch of the property. Park, Real Estate Law §125.

While it might be argued that the interest of the Commonwealth renders the entire property untaxable, I find rather that it is the interest of the Commonwealth which is untaxable, leaving the Beach interest taxable.

Because of the nature of the Beach interest I find that the entire amount is due from Beach and should they wish to redeem such interest, they must pay the City the aforesaid amount together with any charges accrued since December 19, 1990. While this decision may appear harsh to the Beach interests, it most likely could have been avoided had the executrix properly notified the Commonwealth of its interest and seasonably applied for an abatement.

In most situations of co-tenancy, by statute, a tenant who pays the entire tax is able to recover from its co-tenant that tenants share. However, in this instance, the statute is of little help to the Beach interests. G.L. c. 60, §85 reads in pertinent part:

A tenant in common . . . who pays the entire tax assessed upon land held . . . in common shall have a lien upon the interest of each of his co-tenants to secure the payment to him of the proportion of such tax payable by each of said co-tenants (emphasis added).

In this instance there is no tax due from the co-tenant City, hence nothing may be recovered by the co-tenant.

Should the Beach interests choose not to redeem it would seem logical, and I so find, that similarly to a taxing on an executor as provided in G.L. c. 236, §12, the City would be, as I find it is now, a co-tenant of the Property together with the Commonwealth.

It has been argued that the remedy of the Commonwealth should have been an abatement proceeding. While such action would most likely have avoided the present predicament of the Beach interests, such proceeding is not exclusive, if even necessary, for the Commonwealth. Whatever else it may have done, the Commonwealth would appear to have a remedy under G.L. c. 60, §98, whereby it would redeem the property and claim a refund. However, as the Supreme Judicial Court has said in a similar situation

No public advantage will be served by forcing the Commonwealth to redeem the property from the tax title and thereafter recover the redemption payment under c. 60, §98. Norwood v. Norwood Civic Association, 340 Mass. 518 , 524 (1960).

Accordingly and in summary I rule that there is no tax due from the Commonwealth, however, the full amount of $13,240.73 plus additions since December 19, 1990 is due from the Beach interests, said amount to be paid within sixty days of the date of this decision.


[Note 1] It appears that the executor never notified the Commonwealth or the Attorney General of its interest in the property. It is unclear when the Commonwealth learned of its interest. It was not before 1978 and may have been as late as 1987.