Rich v. Tuckerman

Endicott, J. This case raises the question, whether a collector of taxes can maintain an action against the administrator of the estate of a person deceased, under the Gen. Sts. c. 12, § 19, after the expiration of two years from the time that the administrator gave his bond. It was provided in the St. of 1789, c. 4, that where a person, duly rated in any town, has died or removed to another place, or being an unmarried woman has married before the payment of such rates, it shall be lawful for the constable or collector “ to [223] sue for such rates, and they shall have the like remedy for the recovery thereof, as other creditors have for recovering their proper debts.” The commissioners, on the revision of the statutes in 1836, in their report to the Legislature, embody this statute of 1789, in o. 8, § 15, and substitute for the concluding paragraph, quoted above, the words, “ the collector may, in his own name, maintain an action of debt or assumpsit in like manner as for his own debt.” It is evident, that no change in the law was intended by this alteration, and there is no mention of any change in the notes by the commissioners appended to this chapter. The section, as reported by the commissioners., was amended by adding at the end the provision as to trustee process. Rev. Sts. e. 8, § 15. The provisions of this section, enlarged by subsequent acts, Sts. 1848, e. 235; 1852, e. 234; 1859, c. 171, are now contained in Gen. Sts. e. 12, §§ 19, 20. The phraseology of the Rev. Sts. is in substance retained, and a collector may maintain an action, for the recovery of taxes assessed upon a person who has died, against his administrator or executor, “ in like manner as for his own debt.” O. Allen S. 0. Lamb, for the plaintiff. • J. A, Aiken, for the defendant. In view of the legislation on this subject, and the language of the successive acts, we are of opinion that the words “ as for his own debt,” used in the Gen. Sts., are equivalent to and must be construed as having the same meaning as the words in the St.. 1789: “ shall have the like remedy for the recovery thereof, as other creditors have for recovering their proper debts.” The collector has the rights of a creditor, and may pursue the same remedy, and it follows that, in so doing, he must be subject to the provisions of law that apply to other creditors, when attempting to enforce their claims against a deceased person’s estate, in an action against his executor or administrator. As no administrator “ shall be held to answer to the suit of any creditor of the deceased unless it is commenced within two years from the time of his giving bond; ” Gen. Sts. c. 97, § 5; a collector, who has the same remedy as a creditor, cannot maintain such a suit after two years. It is not contended that the facts stated bring this case within any of the exceptions mentioned in the statute, and the entry must be Judgment for the defendant,