Dallinger v. Davis

W. Allen, J. This is an action by the collector of taxes of the city of Cambridge, to recover taxes assessed against the defendant, as executrix, upon personal estate of her testatrix, taxable in Cambridge. The defendant was appointed and gave bond as executrix in January, 1885. The taxes were assessed for the years 1885 and 1886. The action was commenced in May, 1887, more than two years after the giving of notice of her appointment by the defendant. The only defence is under the Pub. Sts. c. 136, § 9, which provide that no executor shall be held to answer to the suit of a creditor of the deceased, unless the suit is commenced within two years from the time of his giving bond as executor. The obvious answer-is, that a tax assessed to an executor, upon the personal property of the deceased is the debt of the executor and not of the deceased. The Pub. Sts. in c. 11, § 20, cl. 7, provide that the personal property of the deceased should be assessed to his executor; and in c. 12, § 21, that, when a tax is assessed upon the personal property of a deceased person, the collector may maintain an action of contract therefor in his own name, as for his own debt, against the executor or administrator. Rich v. Tuckerman, 121 Mass. 222, relied upon by the defendant, was the case of a tax assessed upon the deceased before his death, and has no application to the case at bar. See also St. 1888, c. 390, § 25.* Exceptions overruled. Footnotes [*] This section is as follows: “ When a person assessed for a tax dies or becomes insolvent before the payment thereof, or when a tax is assessed upon the estate of a deceased person, the executor or administrator or assignee shall, if a demand has been made upon him therefor, forthwith, upon his acquiring any moneys applicable to the payment of the tax, pay the same, and in default shall be liable personally therefor, as for a tax assessed upon him.”