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(224 Mass. 516)

1911. The pertinent facts are that the deNEWCOMB, Tax Collector, v. PAIGE. fendant, a resident of Hardwick, in this com

monwealth, together with one Monteagle, a (Supreme Judicial Court of Massachusetts.

resident of California, and one Wright, a resWorcester June 22, 1916.)

ident of New York, was appointed executor 1. TAXATION 93(2)–PROPERTY SUBJECT-of and trustee under the will of Calvin

SITUS OF PROPERTY-DECEDENT'S ESTATE Paige, who was domiciled at the time of his
UNDER ANCILLARY ADMINISTRATION.
The provisions of St. 1909, c. 490, pt. 1,

decease in the city of New York. They were § 23, cl. 5, providing for taxation of personal duly appointed to this trust by the appropriproperty held in trust, and concluding by pro- ate court of the state of New York. They viding that, where the trustee is a nonresident, have not been appointed by the courts of this trust property "shall be assessed to the person or any other state except New York. These to whom the income is payable, in the place where he resides if it is not legally taxed to executors, in accordance with the will, paid

trustee under a testamentary trust in to themselves as trustees a legacy of $150,any other state," do not subject to a property 000, to be held during his life for the benefit tax personal property held by several trustees, of Joseph C. Paige, also a resident of Hardonly one of whom resides in Massachusetts, appointed by a court of another state under the wick. This trust fund was invested in inwill of a testator resident in that state, to be tangible securities, a part of which are not executed according to its law; such property be subject to direct taxation in the state of ing actually deposited and continuously kept in New York, and a part of which are so subsuch foreign state in the hands of a cotrustee, there resident, and there subject to and paying ject to taxation, and as to this part a tax taxes thereon.

was paid in that state for the year 1911. So [Ed. Note.-For other cases, see Taxation, far as taxable the fund as a whole is there Cent, Dig. 8 183; Dec. Dig. 93(2).]

subject to taxation. All the securities, docu2. TAXATION 93(2)-PROPERTY SUBJECT—ments and other evidences respecting the TRUST FUND OF ESTATE.

trust at all times since the creation of the A state by law may establish a taxing juris- trust have been kept physically in New York diction over a trust fund of personal property in the exclusive custody and control of the created by will of a resident, administered by appointees of its own courts, 'of which the evi- trustee there resident, by concurrent assent dences of title, securities, and assets are kept of all the trustees. Under the law of the in the possession of a resident trustee, though state of New York the trustees must act as he shares his fiduciary duties with nonresident a unit and all power possessed by them must associates.

be exercised by them as a body; and the [Ed. Note. For other cases, see Taxation, trust fund still forms a part of the estate of Cent. Dig. § 183; Dec. Dig. Om 93(2).]

the testator, and if the trust should fail for 3. TAXATION 93(2)—PROPERTY SUBJECT, want of takers, the property would become PROPERTY IN POSSESSION OF TRUSTEE. When there are several trustees, one or more

vested in the Supreme Court of New York of whom is domiciled in the state of origin of to be distributed according to law. The law the trust, and the corporeal custody of the secu- of New York relative to the taxation of perrities of the trust is with that trustee at his domi- sonal property kept within that state in the cile, and the title of the trustees is joint, and their hands of executors and trustees appointed powers must be exercised as a unit, there is no such several ownership in one trustee, resident by the courts of that state is in substance outside the state of the establishment of the trust, that when "the will of a deceased resident but resident in Massachusetts, as brings him of New York appoints as executors and truswithin the scope of the tax law as to trust property; St. 1909, c. 490, pt. 1, § 23, cl

. 5, provid- tees a resident of the state of New Jersey ing that as to personal property held in trust, and two residents of the state of New York, the income of which is payable to another per- the amount of an assessment for personal son, if there are two or more trustees residing property under the control of the executors in different places, the property shall be assessed and trustees in the state of New York is not to them in equal proportions in such places.

[Ed. Note.--For other cases, see Taxation, by reason of the nonresidence of the third Cent, Dig. § 183; Dec. Dig. 93(2).]

executor and trustee limited to two-thirds of

the amount of such personal property,” but Report from Superior Court, Worcester extends to the whole. People ex rel. FarmCounty.

ers' Loan & Trust Co. v. Wells, 94 App. Div. Action by Williams A. Newcomb, Tax Col-463, 465, 87 N. Y. Supp. 745, 88 N. Y. Supp. lector, against Timothy Paige. Finding for 1113, affirmed in 179 N. Y. 566, 71 N. E. 1136. plaintiff, and case reported to the full court. We interpret this statement of the law of Judgment for defendant.

New York to mean that all personal property

held by executors and trustees appointed by Ernest H. Vaughan, Edward T. Esty, and the courts of New York acting within their Jay Clark, Jr., all of Worcester, for plain- jurisdiction and actually situated in the state tiff. George D. Storrs, of Ware, for defend-of New York is taxable there in case such ant.

property is held by executors or trustees one

or more of whom reside in the state of New RUGG, C. J. This is an action by the tax York and one or more of whom reside in ancollector of the town of Hardwick to recover other state. People ex rel. McHarg v. Gaus, a tax assessed to the defendant for the year 169 N. Y. 19, 61 N. E. 987.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

This statement of facts shows that in sub- light of the entire act, and of the general stance and effect, where one or more of sever- principles of law as to taxation, do not subal trustees is a resident of New York and ject to a property tax here personal property the securities in which the trust is invested held by several trustees, only one of whom are kept physically in New York, the laws of is a resident of this commonwealth, under apNew York have established a kind of cus- pointment of the court of a sister state of tody in the courts of that state for a trust the Union by virtue of the will of a testator fund administered as is the one at bar, and resident in that state, to be executed accorda domicile of the trust fund for purposes of ing to its law and actually deposited and taxation, with the trustee resident in that continuously kept in such foreign state in state.

the hands of a cotrustee there resident, [1, 2]. The Massachusetts tax law apparent- where it is subject to taxation and a tax ly was not phrased with a view to the exact there is paid on its account. The final sensituation here presented. But in clause 7, Stence of the clause, to the effect that when 23, pt. 1, c. 490, of St. 1909, the right of the the trustee is not a resident of this commonLegislature to establish a domicile for an wealth, the fund shall be "assessed to the estate in process of settlement in the probate person to whom the income is payable in the court is asserted by a provision to the effect place where he resides if it is not legally taxthat personal property of a deceased residented to

trustee under a testamenshall be assessed to the estate until after the tary trust in any other state," is some indicaappointment of an executor or administrator, tion of a legislative purpose that a trust fund and then to such executor or administrator lawfully within the taxing jurisdiction of anfor three years (unless sooner distributed and other state and there making a just contributhe statute complied with) "in the city or tion to the support of government, should town in which the deceased last dwelt." It not be made liable to another tax here. The would be a hard thing to say that a nonresi-theory of official residence of an executor or dent executor or administrator might be trustee at the county seat or within the jutaxed lawfully for the same property at his risdiction of his appointment apart from domicile on the theory that the title to such some express provision of the taxing statute, personal property was in him. Seemingly it finds no support in our cases although adoptalso would be difficult to deny to the Legisla- ed in some jurisdiction, and is not supported ture power to enact that a trust fund held by by the weight of authority. Welch v. Boston, one or more resident and one or more non- 221 Mass. 155, and cases collected at page resident trustees under appointment froin our 161, 109 N. E. 174. But a state by law may courts, to be administered according to our establish a taxing jurisdiction over a trust law, should not have a domicile for taxation fund of personal property created by wills purposes within this commonwealth.

The

of its residents, administered by appointees maxim “mobilia sequuntur personam” is of of its own courts, evidences of title, securities general application. Kirtland v. Hotchkiss, and assets of which are kept within its bor100 U. S. 491, 497, 25 L. Ed. 558; State Tax ders in the possession of a resident trustee, on Foreign Held Bonds, 15 Wall. 300, 21 L. although sharing such fiduciary duty with Ed. 179; Bellows Falls Power Co. v. Com- nonresident associates. When that is the monwealth, 222 Mass. 57, 60, 109 N. E. 891. law of a sister state, as in the case at bar, But there are numerous cases where it is interstate comity would require plain and unheld that a state may establish a taxation interstate comity would require plain and unheld that a state may establish a taxation equivocal statutory words to indicate an insitus for personal property intangible in na. tention by the Legislature to subject such ture physically within its control, although this may not always and necessarily exclude trust property to taxation in this state. taxation by the state of the domicile of the simply because of the residence here of one owner. See, for example, Liverpool & Lon- of several trustees. Johnson v. Oregon City. don & Globe Insurance Co. v. Assessors for 3 Or. 13; Rand v. Pittsfield, 70 N. H. 530.

49 Atl. 88. the Parish of Orleans, 221 U, S. 346, 31 Sup. Ct. 550, 55 L. Ed. 762, L. R. A. 1915C, 903,

[3] When there are several trustees, one or and cases there collected. The provisions of more of whom is domiciled in the state of clause 5, $ 23, of the tax act, 1 read in the origin of the trust, and the corporeal custody

of the securities of the trust is with that 1 St. 1909, c. 490, pt. 1, § 23: "Fifth. Personal trustee at his domicile, and the title of the property held in trust by come of which is payable to another person, shali trustees is joint and their powers must be be assessed to the

trustee in the city or exercised as a unit, there is no such several town in which such other person resides, if within the commonwealth; and if he resides out of the ownership in one trustee resident outside the commonwealth it shall be assessed in the place state of the establishment of the trust, but where the are two or more ** trustees residing in dit resident in Massachusetts, as brings him ferent places, the property shall be assessed to them within the scope of our tax law as to the in equal proportions in such places. the

trustee is not an inhabitant of the trust property. St. 1909, c. 490, pt. 1, § 23. commonwealth, it shall be assessed to the person to whom the income is payable, in the place where Gallup v. Schmidt, 154 Ind. 196, 200, 55 N. E. he resides, if it is not legally taxed to

443; Commonwealth v. Peebles, 134 Ky. 125, 119 S. trustee under 3 testamentary trust in any other w. 774, 23 L. R. A. (N. S.) 1130, 20 Ann. Cas. 724; state."

Goodsite v. Lane, 139 Fed, 593, 72 C. C. A. 281.

Under these circumstances he alone as resi- the Workmen's Compensation Act (St. 1911, dent of this commonwealth does not hold the c. 751). title as owner within the commonwealth in Servant, Dec. Dig. 405(2).

[Ed. Note. For other cases, see Master and such sense as to bring him within the terms

For other definitions, see Words and Phrases, of the tax act. He cannot exercise ownership First and Second Series, Servant; Usual Course as a resident in this commonwealth, but only of Business.] by conjoint action with his fellow trustees, 2. MASTER AND SERVANT C367-INJURIESnone of whom are resident here, as to a fund

"INDEPENDENT CONTRACTOR." in substance in the custody of the courts of material in his own way, through his own serv

Where one is hired to move some building another jurisdiction. His ownership is not of ants, he is an "independent contractor." such character as to bring the taxable domi [Ed. Note.-For other cases, see Master and cile of the trust within the terms of our law. Servant, Dec. Dig. 367. The practical consequences of taxation of First and Second Series, Independent Contrac

For other definitions, see Words and Phrases, the entire trust fund by each state in which tor.] one of a number of trustees might live can- 3. MASTER AND SERVANT O367-INJURIESnot be overlooked. A fund designed to bene WORKMEN'S COMPENSATION ACT - INDEfit relatives and kindred might by diversity of PENDENT CONTRACTOR. laws as to taxation and exemptions in such 3, § 17, providing that if a subscriber contracts

Under Workmen's Compensation Act, pt. instances be greatly depleted in income by with an independent contractor to do the subthe payment of taxes and prove a barren scriber's work, and the association would, if the benefaction. Such an interpretation of the work were executed by employés immediately

employed by the subscribers, be liable for comtax law ought not to be given unless re-pensation to the employés, the association shall quired by words of unmistakable meaning. pay the employés such compensation as would See Kingsbury v. Chapin, 196 Mass. 533, 82 be payable if the contractor were a subscriber,

where claimant's employer was requested by N. E. 700, 13 Ann. Cas. 738.

contractors to send a teamster to load and car. The case at bar is distinguishable from ry concrete sills, wheelbarrows, etc., from a Welch v. Boston, 221 Mass. 155, 109 N. E. storehouse to premises where they were to be 174, where all the trustees resided in Massa- used, and claimant, a teamster, was so sent,

and injured in such work, he comes within the chusetts and nothing appeared as to the law statute, if the work was a part of the contracof the state where the trust was established. tor's business, and not merely ancillary and inIt is also different from Bellows Falls Power cidental thereto. Co. v. Commonwealth, 222 Mass. 51, 109 N. E.

[Ed. Note. For other cases, see Master and

Servant, Dec. Dig. 367.) 891, where the owner of shares of corporate

Suffolk stock was held subject to taxation notwith

Appeal from Superior Court; standing the laws of the state of domicile County. of the corporation.

Proceeding under the Workmen's CompenThe tax in the case at bar is not assessed sation Act by Patrick Comerford, employé, to the beneficiary and it is not necessary to opposed by the McDonald & Joslin Company,

employer, and the Contractor's Mutual Liaconsider that aspect of the tax law. The present statute does not go to the decree of the superior court, approving find

bility Insurance Company, insurer. From a length of expressing a clear intent to levy a tax upon the defendant in respect of the ing and decision of Industrial Accident New York trust under the circumstances here Board for the employé, the insurer appeals. disclosed. It is unnecessary to discuss the Recommitted, to allow further evidence. constitutional questions which in that event

Norman F. Hesseltine and J. Frank Scanwould arise.

nell, both of Boston, for appellant. E. M. Judgment for defendant,

Shanley, of Boston, for appellee.

PIERCE, J. (1) The evidence shows that (224 Mass, 571)

the employé, Comerford, was and had been In re COMERFORD.

for three years before the accident, in the

employment of one Connors as a teamster; In re CONTRACTORS' MUT. LIABILITY that the subscribers, McDonald & Joslin ComINS. CO.

pany speaking through a son of Joslin, the (Supreme Judicial Court of Massachusetts. evening before the accident told Connors that Suffolk. July 10, 1916.)

they "wanted a teamster to take some con1. MASTER AND SERVANT O405(2)-INJURIES

crete window sills, wheelbarrows, picks and -WORKMEN'S COMPENSATION ACT_"USUAL shovels out to Mattapan the next morning"; COURSE OF BUSINESS"_"SERVANT."

that these things to be taken were in the That claimant's employer was requested locker or inclosure at the corner of Langdon load some concrete sills, and that claimant was and Roswell streets; that the “locker” is sent and, while assisted by the son of one of just a storehouse where odds and ends of the contractors in carrying to his team some tools and staging are kept; that the subsills selected by the contractors, he was injur. scribers' business was contracting, building ed, does not show claimant to be a "servant" of the contractors, or engaged in the usual and construction work; that at the time of course of business of the contractors, within the accident the subscribers were construct

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ing a small brick garage in Mattapan; that scribers entered into an oral contract with these reinforced concrete window sills were the independent contractor, Connors, to do wanted for the garage then being built; that that part of the subscribers' work which on the morning of the accident the employé consisted in conveying specific articles from drove into the "locker" or inclosure, as di- the premises of the subscribers to the place rected by the son who had given the order where the “material" was designed to be to Connors, and backed up near to a pile of used in the performance of the subscribers' stone; that the son told the employé that contract. "he wanted to get four of these sills on the [3] The conveyance of

of picks, shovels, team"; that there were some broken ones on wheelbarrows and of constructed and fabrithe top of the pile, and they moved these off cated parts of a building from the storeand laid them down on one side; that they house of a builder and contractor, to the carried two of the sills to the team, and premises where they are to be used or are were carrying the third, when the employé to be combined into a proposed structure, slipped and the sill fell on him.

may be found to be a part of the trade or These facts do not warrant the findings of business of a contractor and is not necessathe Industrial Accident Board that:

rily an act merely ancillary and incidental “During all the time that Comerford was on to the business of that contractor. the premises, after he had driven the team Section 17, c. 751, pt. 3, St. 1911, in part into the locker,' he was engaged in the usual reads: course of the business of the subscribers and was the servant of such subscribers during his ten or oral, with an independent contractor to

"If a subscriber enters into a contract, writemployment on said premises."

do such subscriber's work, or if such a conNor do they warrant the further and more tractor enters into a contract with a subconspecific finding that:

tractor to do all or any part of the work com"* * * Comerford, in the performance of prised, in such contract with the subscriber, the work of lifting and moving sills, was under and the association would, if such work were the control and direction of the subscribers, executed by employés immediately employed and was the servant and employé of the subby the subscriber, be liable to pay compensation scribers in the performance of this work, which under this act to those employés, the associawas in the usual course of their business astion which would be payable to them under

tion shall pay to such employés any compensabuilding contractors."

this act if the independent or subcontractors Upon the facts in this case the employé were subscribers." can be found to be the servant of the gener We are of opinion that the facts of the al employer, Connors, because of his duty to case at bar may be found to bring it withcare for and to manage the team of Connors, in this statute. Sundine's Case, 218 Mass. and cannot be found to be the servant of the 1, 105 N. E. 433, L. R. A. 1916A, 318. subscriber, because he was to carry and to The case is to be recommitted to the Inload concrete sills which were to be selecteddustrial Accident Board, where the employé from a pile of sills by the subscriber, or be- may move for a hearing and for the introcause in lifting and carrying the sills he was duction of further evidence upon the question assisted by the son of the subscriber. Pi- whether the work performed by Comerford geon's Case, 216 Mass. 51, 102 N. E. 932, Ann. was a part of the business of McDonald & Cas. 1915A, 737; King's Case, 220 Mass. 290, Joslin Company or was merely ancillary and 107 N. E. 959; Tornroos v. R. H. White Co., incidental thereto. 220 Mass. 336, 107 N. E. 1015; Quinby v. If such motion is granted the case should Estey, 221 Mass. 56, 108 N. E. 908.

be considered anew upon all the evidence in [2] So far as the record discloses, the work troduced by all parties, and such decision of loading and of transportation was to be should be made upon the facts as the Indusperformed by Connors, through his servant, trial Accident Board thinks is required by in his own way. Connors was, therefore, an the evidence. independent agent or contractor. The sub So ordered.

(224 Mass. 564)

original certificate was part of an attempted SMITH v. WORCESTER & S. ST. RY. CO. fraudulent orerissue of the defendant's capi(Supreme Judicial Court of Massachusetts.

tal stock after it and all of it had been isSuffolk, July 10, 1916.)

sued and for that reason that it was void. 1. CORPORATIONS C106 – GENERAL RELEASE The contention on which the plaintiff based -CONSTRUCTION-SCOPE.

his claim was that the defendant was estopIn an action against a corporation for wrong. ped to dispute the trust company's claim that fully refusing to issue

a new stock certificate for it was a stockholder because it took the origan old one, part of a fraudulent overissue, plaintiff claimed as assignee of a bona fide pledgee inal certificate as collateral for a loan in thereof. The certificate had been issued by a good faith and for value. The defendant's former treasurer of the corporation and de- answer to this contention was that the trust posited with plaintiff's assignor as collateral for his personal notes. Parties endeavoring to company was put upon inquiry by the form reorganize the corporation bought from plain of the certificate and if it had made the inciff's assignor its money demands against the cor- quiry which it should have made, it would poration, evidenced by an assignment to their representatives of "all claims and demands of ev. have learned that the original certificate was ery description and kind," against the corpora- part of a fraudulent overissue of capital tion, which were described as annexed to the as- stock and so void. signment, but were not annexed; but plaintiff's

We do not find it necessary to pass upon assignor knew that the purchaser intended to purchase all such shares held by it. Ileld, that that question. The judge found that: the assignment released the claim based on the "The assignment dated January 18, 1904, evifraudulent overissue of stock.

denced by Exhibit 16, by the International Trust [Ed. Note.--For other cases, see Corporations, Company to Rice and Hoar released any claim Cent. Dig. $$ 456-458; Dec. Dig. Om 106.] in favor of the International Trust Company

against the Worcester & Southbridge Street 2. CORPORATIONS 102 – “CERTIFICATE OF Railway Company arising out of the possession SHARES OF STOCK"-OVERISSUE-FRAUD.

by the said trust company” of the original cerA certificate issued as part of an attempted tificate here in question. To that finding the fraudulent overissue of stock is not a "certificate plaintiff took an exception. of shares of stock." [Ed. Note.-For other cases, see Corporations,

[1] By the assignment of January 18th, Jent. Dig. $ 452; Dec. Dig. 102.]

1 Exhibit 16: Know all men by these presents 3. CORPORATIONS Ow104 - STOCK — ISSUE OF that International Trust Company (of Boston), in

CERTIFICATES – ESTOPPEL TO ALLEGE INVA- consideration of one dollar and other valuable con-
LIDITY-EFFECT.

siderations to it paid by William E. Rice and RockAn estoppel of a corporation to deny that wood Hoar, the receipt whereof is hereby acknowlbulder of certificates representing part of an edged, does hereby assign, transfer and convey to uverissue of stock is a stockholder does not make said William E. Rice and Rockwood Hoar, their bim one, but merely gives him a right of action heirs and assigns, all claims and demands of every based thereon.

description and kind against the Worcester & [Ed. Note. For other cases, see Corporations, Southbridge Street Railway Company, said claims Cent. Dig. § 454; Dec. Dig. Om 104.]

together with interest thereon to January 4, 1904,

amounting to seventy-seven thousand and sixty-two 4. APPEAL AND ERROR Omw 812(1)-REVIEW- 22/100 dollars, which claims or demands are annexed QUESTIONS OF LAW.

to this assignment. And the said corporation does The question of the true construction of an hereby appoint said William E. Rice and Rockwood assignment claimed to be a release is a question Hoar, or either of them, its attorney or attorneys of law, reviewable on exception; but it must irrevocable, in its name and for its account, but be determined in the light of what the trial without expense to it, to sue for, recover, release, judge was warranted in finding.

discharge, compromise, prove in bankruptcy or with [Ed. Note.-For other cases, see Appeal and the receivers of said company said claim, or to Error, Cent. Dig. $$ 3316–3318, 3323; Dec. Dig. bring suit against any person or partnership or On 842(1).]

corporation who may be liable thereon directly or Exceptions from Superior Court, Suffolk indirectly, and to assent or object to any action of

the receivers, and generally to deal with the same County ; John H. Hardy, Judge.

as fully and completely as it could do if acting Action by B. Farnham Smith against the through its officers. Meaning and intending by this Worcester & Southbridge Street Railway ed assignees all claims which it may have against

instrument to transfer and assign to the above namCompany. To findings of the superior court, the said Worcester Street Railway Company, or any plaintiff excepted. Exceptions overruled. person or persons who may be liable in any way

for said claims. Robert M. Morse and John R. Lazenby,

In witness whereof the said International Trust both of Boston, for plaintiff. Choate, Hall Company (of Boston) has caused its name to be & Stewart and E. S. Kochersperger, all of signed, and its seal affixed by Henry L. Jewett, its

treasurer duly authorized by vote, a copy of which Boston, for defendant.

is annexed, this 18th day of January, in the year

one thousand nine hundred and four. LORING, J. This is an action for wrong

[Seal.] International Trust Company,

By Henry L. Jewett, Treasurer. fully refusing to issue to the plaintiff a new

At a meeting of the directors of the International certificate for shares in the capital stock Trust Co. held on Monday, Jan. 18th, a quorum beof the defendant corporation on the surren- ing present, it was unanimously voted: der of a certificate for shares dated Feb

That Henry L. Jewett, treasurer, be authorized to

execute on behalf of this company an assignment of ruary 11, 1903.

11, 1903. The action was really its claims against the Worcester & Southbridge brought by the International Trust Company Street Railway Company, amounting to $77,062.22, for which the plaintiff held the certificate to William E. Rice and Rockwood Hoar.

Henry L. Jewett, Secretary. as a volunteer. The judge before whom the

A true copy.
case was tried without a jury found that the Attest: [Seal.]

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