Carleton v. Inhabitants of Ashburnham

102 Mass. 348

Opinion

Colt, J.

Upon the facts reported, there is no error in matter of law in the award of the referee.

1, Before the assessment was made, there was a settlement and distribution of the estate, by amicable arrangement among all parties interested, of which the assessors were notified. We cannot construe the seventh clause of the Gen. Sts. c. 11, § 12, as requiring that the estate shall be distributed and paid over, under a formal settlement and decree in the probate court, before it can be exempt from taxation to the administrator. If this were so, then all estates must go through a regular course of administration, however desirous the parties may be to avoid, by settlement among themselves, the expense and delay of going to the probate court.

2. The report does not show but that the tax was legally abated. We do not find anything in the statute which requires that the tax shall be abated by the same persons who assessed it. Their successors in office may do it, if the party assessed makes application wifhin six months from the date of the tax bill, and brings himself within the other requirements of the law Hubbard v. Garfield, ante, 72.

3. It is contended that, as by Gen. Sts. c. 12, § 56, no money paid to a collector of taxes can be recovered back, unless it appears that it was paid after a written protest, the plaintiff must fail, because it is found in this case that the money and written protest were handed to the collector at the same time. But it is an old principle that, when two acts are done at the same time, the one shall take effect first which ought in strictness to have been done first in order to give it effect. Claflin v. Thayer, 13 Gray, 459. Judgment affirmed.