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(146 N.E.) the tract of land for cemetery uses and sold See Worcester Board of Health v. Tupper, lots to various societies, who are defend- 210 Mass. 378, 96 N. E. 1096. ants in this suit. In pursuance of an article Decree affirmed with costs. in a warrant issued on December 15, 1919, the town in town meeting on January 5, 1920, voted to appoint and did appoint a committee to 'begin proceedings to prevent BREWSTER et al. v. COMMISSIONER OF the corporation from using the land, which

CORPORATIONS AND TAXATION. it had then acquired as a cemetery. This bill in equity was brought within twenty-five (Supreme Judicial Court of Massachusetts. days of the appointment of the committee.

Suffolk. Jan. 28, 1925.) [1] An examination of St. 1855, c. 257; Taxation en 104_Resident executors appointGen. St. c. 28, 88 5, 11, Pub. St. C. 82, 88

ed under foreign will, not acting as trustees, 18, 21, R. L. C. 78, § 30, St. 1908, c. 379, held not liable for income tax on sale of in$ 1, makes plain that the permission of the tangibles. town which must be given before land can be Executors, residents of Massachusetts, apused for a new cemetery or extension of pointed in sister state, in which will was proan old one is a permission which must result bated, and who did not act as trustees, could from a vote of the inhabitants of the town not be taxed, under G. L. c. 62, 88 5, 10-13,

on income received for sale of intangible perin town meeting legally assembled. In the

sonal property.
case at bar no statute and no vote of the
town gave the selectmen any right to act

Report from Superior Court, Suffolk Coun-
in behalf of the town. Woodlawn Cemetery ty; Philip J. O'Connell, Judge.
p. Everett, 118 Mass. 354; Bean V. Hyde
Park; 143 Mass. 245, 9 N. E. 638.

Complaint by Frank Brewster and another, {2} The serious question is whether a bill as executors of the will of Arthur B. Emin equity at the instance of the town will lie mons, late of Newport, R. I., against Henry to enjoin the use of land for cemetery pur: Taxation, for abatement of income tax. On

F. Long, Commissioner of Corporations and poses, when permission of the town has not been obtained for such use in accordance

report from the superior court. Abatement with the provision of G. L. c. 114, § 34, or

granted, and tax paid ordered repaid. whether the sole redress is by indictment

H. M. Davis, of Boston, for complainants. after the offense is complete. Attorney Gen.

A. Lincoln, Asst. Atty. Gen., for responderal v. Metropolitan Railroad, 125 Mass. 515, ent. 28 Am. Rep. 264; Kenney v. Consumers' Gas Co., 142 Mass. 417, 420, 8 N. E. 138; Cam- CARROLL, J. The complainants, citizens bridgé v. John C. Dow Co., 185 Mass. 448, and inhabitants of this Commonwealth, are 451, 70 N. E. 447; Thayer v. Kitchen, 200 executors of the will of Arthur B. Emmons, Mass. 382, 386, 86 N. E. 952; O'Keefe V.

an inhabitant of the state of Rhode Island, Sheehan, 235 Mass. 390, 398, 126 N, E. 822. which will was admitted to probate by the St. 1855, c. 257, provided a penalty for in- probate court of the city of Newport, R. I.

, terments in violation of the statute, to be August 24, 1922. They bring this complaint recovered by indictment for the use of the under G. L. C. 62, $ 47, for an abatement of town, and nothing is said as to any other a tax on income assessed against them. judicial remedy. The provision as to the use

One thousand shares of American Can of the penalty disappeared in the revision of Company stock and 1,200 rights to subscribe the laws in 1860 (see Gen. St. c. 28, 88 5, 11). to new shares of the American Telephone & The provision as to the penalty has other+ Telegraph Company, belonging to the estate, wise perdured until re-enacted in G. L. C. 114, were sold by the complainants. The defend$34. The public health, comfort and wel- ant assessed to the complainants a tax on fare are the sanction giving validity to leg- $47,701.45, this amount being the difference islative acts which restrain citizens in the between the total amount received by the full use and enjoyment of their property. executors from the sale of the securities and Woodlawn Cemetery v. Everett, supra. The rights and the cost of the securities to the Act of 1855, c. 257, and the acts which con- testator. Bingham v. Commissioner of Cortinue it, even to G. L. c. 114, $ 34, have for porations and Taxation, 249 Mass. 79, 144 their end the same purpose as the zoning N. E. 77, had not been decided when the tas acts and acts which are specifically directed was assessed and the defendant concedes to the preservation of the public health. We that the complainants are entitled to a parthink a town in the circumstances herein tial abatement, but contends that the execudisclosed bas a property interest in the en

tors are liable to a tax on the gain on sale of forcement of the provisions of G. L. c. 114, the American Can Company stock over its $ 34, which a court can safeguard by in- value at the time of the testator's death. Junction in the exercise of the general equity

There was no real estate belonging to the jurisdiction of the court.

testator in this commonwealth. About oneem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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seventh of 1 per cent. of the personal estate, , mate similitude of conditions." The condiconsisting of a deposit in a national bank in tions in the case at bar are not the conditions Boston, was the only portion of his personal governed by section 13, where an executor estate in this jurisdiction. The stocks and is acting as trustee. The complainants were bonds of the testator were at the time of not trustees and were not acting as such. his death deposited in a safe-deposit box in They were inhabitants of this commonwealth, Newport, R. I. The shares of the American but the testator was domiciled in a foreign Can Company were general assets of the es- state, where his will was probated. They tate and were not specifically bequeathed. received no appointment from the courts of The proceeds from the sale of the shares were this commonwealth. A trustee was appointdeposited in a bank in Boston by the execu- ed under the will and the ordinary duties of tors and subsequently drawn on by them for executor to administer the estate did not the payment of debts, legacies, and expenses bring them within the provisions of section of administration. No ancillary administra- 13. Welch v. Boston, 221 Mass. 155, 109 N. tion has been taken out in this common- E. 174, Ann. Cas. 1917D, 946, does not auwealth. The trustee named in the will (a thorize a tax on the executors in the case at corporation of New York) has accepted the bar. In Welch v. Boston the plaintiffs held trust, and since 1922 the executors have paid the property as trustees; they did not hold it over to it the greater part of the residue of as executors in the process of settlement of the estate. No appointment of such trustee the estate. See Newcomb v. Paige, 224 has been made by any court, and it is not Mass. 516, 113 N. E. 458; Hart v. Tax Comrequired by the law of the testator's domicile. missioner, 240 Mass. 37, 132 N. E. 621.

The contention of the defendant is that, as The gain on the sale of intangibles on the executors are inhabitants of this com- which was levied the assessment is not income monwealth, they are liable to a tax on the by the law of the testator's domicile, as beincome received from the sale of intangible tween the life tenant and the remainderman; personal property belonging to the estate; ( nor is said gain income to be paid as such to that by G. L. C. 62, § 13, the executors who a legatee or beneficiary to whom income is are such inhabitants, appointed under a payable under the will; and even if the inforeign will, are taxable. G. L. C. 62, § 10, come were accumulated in trust for the ben. provides that income received by trustees, efit of unborn or unascertained persons any one of whom is an inhabitant of this with contingent interests, these circumstanccommonwealth or has been appointed by a es would be insufficient to warrant the tax court of this commonwealth, shall be subject against the plaintiffs on the facts agreed to to a tax. By section 11, if an inhabitant of in this case. The executors held the funds this commonwealth receives income from a in their hands as executors under a foreign trustee who is not an inhabitant of this com- appointment, and there is no provision in our monwealth or has not received his appoint- tax statute authorizing a tax on such execument from a court of this commonwealth, tors, while so acting, because they are inthe income shall be taxed. Section 12 gives habitants of this commonwealth. As was to the trustee the right to claim the exemp- said in Maguire v. Tax Commissioner, 230 tion provided by subsection (a) of section 8. Mass. 503, 513, 120 N. E. 162, 167: Section 13 enacts that these sections (10 to Our income tax law is founded upon inter12 inclusive) "shall, so far as apt," apply to state comity.

It taxes only residents executors, "to the income received by them of this commonwealth in respect of property and to their beneficiaries." Section 13, mak-in which they have a beneficial interest. It ing section 10 applicable, does not authorize exempts resident trustees.

But it a tax on the complainants upon the income taxes resident cestuis que trust in respect of

income actually received by them from trust from the sale of intangibles. Sections 10 to property held in other states and not there 12 apply to trustees and by section 13 these taxed.” sections apply to executors only "so far as apt." There are many instances where exec The complainants were not taxable under utors act as trustee. See Ricketson v. Mer- G. L. C. 62, § 5, cl. (c). Without considering rill, 148 Mass. 76, 19 N. E. 11; Lathrop v. the many objections urged against the validMerrill, 207 Mass. 6, 92 N. E. 1019. There ity of this tax (see Welch v. Adams, 152 is nothing in the agreed statement of facts Mass. 74, 83, 25 N. E. 34, 9 L. R. A. 244; Bliss indicating that the executors were to act as v. Bliss, 221 Mass. 201, 204, 109 N. E. 148, trustees; their only appointment was that of L. R. A. 1916A, 889; Old Colony Trust Co. executors, and their authority to act was v. Commissioner of Corporations & Taxaconfined to the performance of their duty as tion, 245 Mass. 155, 139 N. E. 441), it is sufsuch executors.

ficient to say that, the residence of the execIt was said in Wheelwright v. Tax Com- utors being in this commonwealth, they remissioner, 235 Mass. 554, at page 587, 127 N.ceiving no appointment from our courts and E. 523, that the word "apt,” in the phrase the testator's will being probated in a sister "so far as apt” in section 13, suggests “inti- state, the executors acting as such and not as

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(146 N.E.) trustees, according to the statement of facts, | tate, real, personal and mixed wherever situcannot be taxed under the statutes of this ated and whenever and however acquired." commonwealth. The abatement is granted. The amount

At the time the will was executed, both thereof is to be repaid to the complainants named beneficiaries were living, and were by the state treasurer, with interest from the nearest of kin of the testatrix; but Fred the date hen the tax was paid at the rate W. Chesley died without issue before her

death. of 6 per cent. per annum, and costs.

At her death her heirs at law and So ordered.

next of kin were her nephew, William P. Chesley, and a grandnephew, Edgar A. Gib

A citation on the petition was served

as ordered by the Probate Court. The reHOBBS v. CHESLEY et al.

spondent, William P. Chesley, filed an an

swer, and the petition was taken for con(Supreme Judicial Court of Massachusetts.

fessed as to Charles W. Chesley, Edgar A. Suffolk. Jan. 31, 1925.)

Gibson, and all other parties interested who

A substantial sum of 1. Wills 523Gift of residue to several have not appeared. legatees named, to be divided equally, is gift money is left to be distributed under the to them as individuals.

residuary clause hereinbefore quoted. After Generally, where there is gift by will of hearing the probate court entered a final fund or residue to several legatees, who are decree that: named, to be divided among them equally, gift

“The residue of the estate be distributed is to them as individuals, and not as a class.

three-fourths to William P. Chesley and one2. Wills Com 775--Legacy to one of class of fourth to Edgar A. Gibson; that is to say, that legatees lapses, if legatee predeceases testa. the one-half of the residue which Fred W. tor.

Chesley would have been entitled to receive Where there is gift by will of fund or resi- had he survived the testatrix, is to be dis

tributed as intestate property.” due to several legatees, who are named, to be divided among them equally, if one of them dies before testator, legacy intended for him William P. Chesley appealed from this delapses.

[1-3] The only question argued on this ap3. Wills Cw858(1)-Residuary estate held not peal is whether by the residuary clause the intended to go to nephews as a class.

whole residue passes to William P. Chesley Where bequest of residuary estate was to

as the sole surviving member of a class, or nephews as named beneficiaries, word "neph- whether he takes one half of the residue ew" being to identify and not to describe class, and that one nephew predeceased testatrix, his and the other half is to be distributed as inlegacy lapsed, and estate intended for 'him testate property. The general rule is, that must be distributed as intestate property.

where there is a gift by will of a fund or

residue to several legatees who are named, Appeal from Probate Court, Suffolk Coun- to be divided among them in equal shares, ty; A. W. Dolan, Judge.

the gift is to them as individuals and not as Petition by Fred A. Hobbs, executor, dies before the testator the legacy intended

a class. In such cases if one of the legatees against William P. Chesley and others, for construction of the will of Mary E. Chesley, 546; Frost v. Courtis, 167 Mass. 251, 45 N.

for him lapses. Jackson v. Roberts, 14 Gray, deceased. From decree of distribution, de E. 687; Best v. Berry, 189 Mass. 510, 75 N. fendant named appeals. Afirmed.

E. 743, 109 Am. St. Rep. 651; Boston Safe C. E. Haywood, of Boston, for appellant. Deposit & Trust Co. v. Reed, 229 Mass, 267, F. O. Downes, of Boston, for respondent. 118 N. E. 333. The testatrix had by for

mer clauses in her will given substantial SANDERSON, J.

This is a petition for legacies to each of the nephews named in the construction of the will of Mary E. Ches- the residuary clause, describing him in each ley, who died December 6, 1922, brought by case as her nephew and naming him. She the executor of her will against William P. had also given a small legacy to Edgar A. Chesley, Charles W. Chesley, and Edgar A. Gibson, referring to him as her grandnephew. Gibson. The will, dated February 1, 1917, There is nothing in the other clauses of the Was duly approved and allowed, and the pe will to indicate that the testatrix had in titioner, Fred A. Hobbs, appointed executor mind a class as the object of her bounty. on February 1, 1923.

The testatrix, after rather than the individuals named, or that making several bequests, provided in the she intended to benefit the nephews surfourth clause of her will as follows:

viving at her death rather than to benefit "Fourth. I give and bequeath and devise to the two individual nephews, who my said nephew, William P. Chesley and Fred

named. Boston Safe Deposit & Trust Co. W. Chesley, their heirs and assigus forever, v. Reed, supra. The bequest was to William all the rest, residue and remainder of my es- / P. Chesley and Fred W. Chesley as named

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

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beneficiaries, and the word "nephew" is used The undisputed facts as they appear in to identify them and not to describe a class. the report are as follows: It follows that the one half of the residue On January 19, 1917, the plaintiff paid the which Fred W. Chesley would have been en- defendant at its Boston office the sum of titled to receive must be distributed as intes- $797.59 and received a receipt, the material tate property and be divided equally between part of which read: William P. Chesley and Edgar A. Gibson.

"Received of Semers V. Skopetz Ro 2690, @ The decree of the probate court to be

29.65, valued at seven hundred ninety seven affirmed. Additional costs out of the fund and 59/100 dollars, Government Savings Bank, are to be in the discretion of the court. Petrograd, Russia. Return bank book." Ordered accordingly.

In explanation of this receipt counsel for the defendant stated in court to the judge:

"That this receipt is meant to cover a pay.

ment by the plaintiff to the defendant of $797.SKOPETZ V, AMERICAN EXPRESS CO.

59, with which the defendant was to effect a

deposit in the Government Savings Bank in (Supreme Judicial Court of Massachusetts. Petrograd, Russia, of 2,690 Russian rubles, Suffolk. Jan. 30, 1925.)

which was the amount of Russian rubles which

$797.59 would buy on that day at the rate of 1. Banks and banking Cw18812-Express com- exchange of .2965, and they were to return a

pany had implied assent of plaintiff to trans. bank book or cause a bank book to be returned mit rubles through its correspondent.

to the plaintiff," Where contract with plaintiff authorized express company to transfer to foreign bank

The plaintiff went to the American Exrubles purchased of defendant through latter's press Company three times to get the bank correspondent, or to use means of transmission book, the first time within four months after recognized as suitable among merchants and he paid the money to the defendant, again banks, it had implied assent of plaintiff to after two years, and again after another two transmit rubles through its correspondent.

years. He never got back his money or a 2. Banks and banking Om 188/2-Express com.

bank book. He never attempted to find out pany held not liable for its correspondent's whether the rubles were in fact deposited default, after it became plaintiff's agent to in the bank in Petrograd, and he did not transmit funds.

know that there was a revolution in Russia Correspondent of express company, being when this money was paid. suitable agent to transmit rubles purchased by It appeared in evidence that the New York plaintiff, became plaintiff's agent when it re- office of the American Express Company on ceived and recognized direction of defendant January 23, 1917, wrote its correspondent to transfer rubles to foreign savings bank, and in Petrograd, the Azoff Don Commerz Bank, defendant was not thereafter responsible for

as follows: default or negligence of correspondent.

"Upon receipt of this letter, kindly arrange Report from Superior Court, Suffolk Coun- | to effect the following, and in settlement debit ty; Franklin T. Hammond, Judge.

us in account with your goodselves:

"No. 10—To the Imperial Savings Bank of Action of contract by Semers V. Skopetz Moscow, Russia, for the account of Mr. Frank against the American Express Company for S. McKonna, rubles 130,000.00. money had and received to plaintiff's use. "No. 11–To the Government Savings Bank Verdict was directed for defendant, and case

of Petrograd, Russia, for the amount of Vasily reported. Judgment for defendant.

D. Grelchenko, rubles 2,430.00.

"No. 12–To the Government Savings Bank J. M. Graham, of Boston, for plaintiff. of Petrograd, Russia, for the account of SeS. Hoar, of Boston, for defendant.

man V. Skopetz, peasant, specimen signatures

of depositor herewith attached, the sum of PIERCE, J. This is an action for money twenty-six hundred ninety rubles (rubles 2,had and received by the defendant to the

690.00).

“Kindly obtain and send us bank books cov. plaintiff's use, amounting to $797.59. At the ering the above deposits.” close of the evidence, on motion of the defendant the judge directed a verdict in its On May 15, 1917, the correspondent wrote favor, and reported the case to this court on the defendant as follows: the agreement of the parties that:

“Referring to your instructions of the 23d, "If the verdict for the defendant was wrong. January last (mail transfer No. 10) and furfully directed, judgment is to be entered for ther to our telegram of the 16/29th March, we the plaintiff in the sum of seven hundred nine cabled you to-day in these terms: 'We repeat ty-seven dollars fifty-nine cents ($797.59), with our twenty-ninth March Moscow Savings Bank interest from the date of the writ; but that refuses accept 130,000 rubles account Mc. if said verdict for the defendant was rightly Konna without application written in Russian directed, judgment is to be entered on the and nationality certificate. Please cable inverdict as directed."

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

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(146 N.E.)
It further appeared in evidence that at all, duty of the subagent of the plaintiff, the cor-
times the American Express Company had a respondent of the defendant, to demand of
sufficient amount of rubles to its credit on the Savings Bank “the bank book” when it
deposit with the Azoff Don Commerz Bank to paid the rubles, and to cause the same to be
cover all its outstanding obligations, includ- sent to the defendant as the agent of the
ing the one in question; that the American plaintiff. The defendant is not responsible
Express Company never received from the for the default of the subagent, if it be in
Government Savings Bank of Petrograd, default, in this regard. We think the ver-
Russia, a bank book covering the remittance dict was directed rightly for the defendant.
in this case; that it has no information Commissioner of Banks v. American Express
whether or not the deposit was made by the Co., 249 Mass. 177, 143 N. E. 925.
Azoff Don Commerz Bank, its correspondent, In accordance with the terms of the report,
in the Government Savings Bank of Petro- "judgment is to be entered on the verdict."
grad, Russia, for the plaintiff, or whether a So ordered.
bank book was forwarded from Russia. It
was agreed that the plaintiff has never re-
ceived the bank book, that he is without in-
formation as to whether the rubles stand to

OSBORNE et al. v. CRAIG.
his credit in the Government Savings Bank
of Petrograd, Russia, and whether a bank

(Supreme Judicial Court of Massachusetts.

Essex. Jan. 31, 1925.) book has been forwarded from Russia. It was also agreed that the defendant could I. Executors and administrators Om20(10)bave drawn its draft on the Azoff Don Com- Decision of probate court in determining merz Bank and sent it direct to the Govern

whether executor or administrator is

suitable not disturbed, unless erroneous and ment Savings Bank, Petrograd, Russia, with

unsupported by evidence. instructions to deposit the same to the credit

Sound discretion rests in probate court, of this plaintiff, and return the bank book.

when called on to decide whether executor or (1) The contract with the plaintiff requir- administrator is unsuitable, and his decision ed the defendant to transfer to the Govern- | thereon will not be disturbed, unless clearly ment Savings Bank the rubles purchased of erroneous and not supported by evidence. the defendant on January 19, 1917. This contract authorized the defendant to trans- 2. Executors and administrators ww 20(7)

Evidence held to warrant finding that appli. fer the rubles to the Savings Bank through

cant was person unsuitable for appointment its correspondent at Petrograd, or to use any as executor. means of transmission which is recognized Evidence that executor named in will had as suitable among merchants and bankers. failed to administer another estate with diliWhile in the case at bar the defendant could gence and proper efficiency, and that he was have sent its own servants to the Savings antagonistic to cestui que trust, held, in view Bank at Petrograd, and could have sent its of G. L. c. 192, § 4, and chapter 195, § 11, draft on its correspondent direct to the Sav- to sustain finding that he was person unsuitings Bank, it cannot be said that the means

able for appointment. of transmission adopted was not suitable and

Appeal from Probate Court, Essex County; was not reasonably necessary to have been employed. In the circumstances we are of

H. R. Dow, Judge. opinion the defendant had the implied assent

In the matter of the estate of one Osborne, of the plaintiff to transmit the rubles through deceased. Proceeding by Archer P. Osborne its correspondent in Petrograd.

and another for appointment as executors, [2] The correspondent being a suitable opposed by Eva W. Craig. From a decree agency, and being in funds of the defendant, appointing petitioner named as sole executor became the agent of the plaintiff when it re- and refusing to appoint Roy W. Osborne, the ceived and recognized the direction of the latter appeals. Affirmed. defendant contained in the letter to it dated H. L. Burnham, of Boston, for appellant. January 23, 1917; and the defendant had E. C. Jacobs and W. F. Carleton, both of performed its duty and was not responsible Lynn, for respondent. for the default or negligence of the correspondent. Fabens v. Mercantile Bank, 23 CARROLL, J. The testator died August Pick, 330, 34 Am. Dec. 59; Dorchester & Mil- 5, 1923. In his will his sons Roy W. Osborne ton Bank v. New England Bank, 1 Cush. 177; and Archer P. Osborne were named as exLord v. Hingham National Bank, 186 Mass. ecutors and trustees. His widow was given 161, 71 N. E. 312. It is apparent that a bank one-third of the estate, the remaining twobook would not be issued and could not be thirds to be divided among his children. returned or caused to be returned before the The share of his daughter Eva W. Craig was rubles were in fact deposited to the credit to be held in trust, the income to be paid to of the plaintiff in the Savings Bank in Petro- her during her life, and at her death the grad, Russia ; and it is clear that it was the principal was to be held for her children.

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

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