Sears v. Inhabitants of Nahant

221 Mass. 435

Opinion

Rugg, C. J.

This is an action of contract whereby one of

the executors of the will of the late Frederick R. Sears seeks to recover from the town of Nahant the tax, or excess above what he contends that the tax ought to have been, levied on the estate for the year 1909, and collected of him as one of four executors. No list of property was filed for that year by the executors at any time. No petition for the abatement of the taxes for that year ever has been filed. It is manifest from the agreed facts that the executors were liable that year to be assessed at least for the property originally held by them as executors, which they had attempted to distribute to themselves as trustees under the will before their accounts as executors had been duly filed, allowed and proved in the Probate Court. It has been the law of this Commonwealth for many years that such attempted transfer was ineffectual so far as concerns taxation. Hardy v. Yarmouth, 6 Allen, 277. See Welch v. Boston, 211 Mass. 178, where all the earlier cases are reviewed.

The executors in 1909 were taxable under the law in Nahant at the least for the portion of the estate devised to them as trustees. In any event, a part of the tax was legal. Sears v. Nahant, 215 Mass. 329. Hence on the aspect of the case most favorable to the plaintiff on his own contention, the tax was not wholly illegal but only excessive in amount.

Scarcely any proposition in the law of taxation is more firmly settled than that an action of contract does not lie to recover back any part of a tax too heavy by reason of a simple over-assessment. It is immaterial whether the over-assessment arises either from too high valuation of property actually owned, or by the inclusion of other property not owned for which no tax ought to be levied. The sole remedy in such case is that provided by the statute by way of abatement. That remedy is adequate, plain, complete, and expeditious. It is direct and simple. It affords ample opportunity for hearings before competent and impartial tribunals. It is exclusive. The decisions to this point are so numerous that only a few need be cited. Howe v. Boston, 7 Cush. 273. Harrington v. Glidden, 179 Mass. 486. Glidden v. Harrington, 189 U. S. 255. Kelley v. Barton, 174 Mass. 396. All Saints Parish v. Brookline, 178 Mass. 404, 410. Sears v. Nahant, 208 Mass. 208, 210. It follows that the defendant must prevail.

The other points discussed by the plaintiff are quite irrelevant in view of this decisive barrier which lies across his path.

In accordance with the terms of the report, let the entry be

Judgment for the defendant.