209 Mass. 456

January 9, 1911 - June 26, 1911

Plymouth County


Tax. Executor and Administrator. Practice, Civil, Agreed statement of facts. Pleading, Civil, Answer.

Where an executor of the will of a resident of this Commonwealth, who was appointed by a Probate Court of this Commonwealth, is a resident of another State in which there is personal property of the estate of the testator and has been appointed in that State ancillary executor of the will to administer such property, the property in such other State is not in his possession or control as executor of the will in this Commonwealth and cannot be taxed to him here as such executor.

On an appeal from a judgment made upon an agreed statement of facts, which gave the court no power to draw inferences of fact from the facts agreed upon, if a material fact necessary to recovery is not contained in the agreed statement of facts but is averred in the declaration or petition and is not denied or referred to in the answer, under R. L. c. 173, § 24, it may be taken to have been admitted.

PETITION , filed in the Superior Court on October 21, 1909, by a resident of San Francisco in the State of California, as the executor of the will of Harriot O. Peirce, late of Middleborough in this Commonwealth, appealing from the refusal of the assessors of the town of Middleborough to abate a tax upon the personal property of the estate of the testatrix.

The case was submitted to Morton, J., upon an agreed statement of facts. The statement contained no stipulation in regard to a power to draw inferences, and concluded as follows : "The question presented for the determination of the court is whether or not, upon the facts presented, the petitioner is entitled to an

Page 457

abatement of so much of the tax assessed to him as was assessed upon the $22,410 in his hands and possession as ancillary executor, acting under the appointment of the Probate Court in the State of California." The facts material to this question are stated in the opinion.

The judge refused to grant an abatement, and ordered judgment for the respondent for its costs and expenses. From the judgment entered in accordance with this order the petitioner appealed.

The case was submitted on briefs.

G. W. Stetson, for the petitioner.

N. Washburn, for the respondent .

SHELDON, J. The petitioner is a resident of the State of California. As executor of the will of Harriot O. Peirce, he had in his possession in this Commonwealth certain personal property formerly of that testatrix, and as ancillary executor of the same will he had in California other personal property of hers. The latter property never came into his possession as executor in this Commonwealth. The question is whether, as executor here, he is taxable upon the latter property, which he had in California in his capacity merely of ancillary executor under appointment by the proper court of that State.

It is true, as the respondent contends, that our laws subject to taxation not only all the property, real and personal, situated within the Commonwealth, but also all personal property of its inhabitants, wherever situated, unless by reason of some specific exemption. R. L. c. 12, § 2. St. 1909, c. 490, Part I. § 2. Brooks v. West Springfield, 193 Mass. 190, 195. Hunt v. Perry, 165 Mass. 287. Bemis v. Boston, 14 Allen 366. But the property in question does not come under either of these heads. It is not actually within the Commonwealth, and its owner is not a resident thereof. See the opinion by a former Chief Justice of this court in Dallinger v. Rapello, 14 Fed. Rep. 32. The fact that the petitioner is the executor of the will of a resident of the Commonwealth does indeed subject him to the jurisdiction of our courts so far as his rights and liabilities in that capacity are concerned, and appropriate legislation has been passed for the enforcement of that jurisdiction. R. L. c. 139, § 8. But this does not make him in any sense a resident of the Common=

Page 458

wealth, or subject him to the jurisdiction thereof except to that limited extent.

This property situated in California was not in his possession as executor here. It was in his hands in California as ancillary executor there, to be administered there under the direction of the court which had appointed him. Doubtless any final balance in his hands there would be paid over to himself as principal executor here, and would then be held by him in the latter capacity, and well might be taxable here. But it is not the money or property itself taken by the ancillary executor that is to be paid or delivered to the principal executor, nor has the latter the right to demand an immediate payment or delivery. It is only what may remain after the ancillary administration has been completed that will come to the possession of the principal executor. Stevens v. Gaylord, 11 Mass. 256. Newell v. Peaslee, 151 Mass. 601. Welch v. Adams, 152 Mass. 74. Property which the petitioner, himself a resident of California, has in his possession in that State as ancillary executor merely is not in his possession or control as principal executor of the same testatrix in this Commonwealth. Fay v. Haven, 3 Met. 109. See Norton v. Palmer, 7 Cush. 523.

Our only doubt has arisen from the manner in which the case has been presented. It was submitted to the Superior Court, and has come to us by appeal, upon an agreed statement of facts, with no power to draw inferences therefrom. Unless these facts show upon the face of the record that the petitioner is entitled to the relief sought, it cannot be given to him. But these agreed facts do not state his residence. That however is averred in the petition, and is not denied in the answer. It must be taken to have been admitted.

A very different question would have been presented if the petitioner, acting simultaneously in these two capacities, had been a resident of this Commonwealth.

The view which we take makes it unnecessary to consider whether the list or statement which the petitioner filed with the assessors, a reasonable excuse having been shown for his delay, was conclusive upon them under the terms of R. L. c. 12, § 46. St. 1909, c. 490, Part I. § 46. See Chase v. Boston, 193 Mass. 522, 527, and cases there cited.

Page 459

The petitioner is entitled to an abatement of so much of the tax which he has paid as was assessed upon the amount in his hands as ancillary executor in California, and to judgment therefor with interest.

So ordered.