Dallinger v. Richardson

Hammond, J. Upon the evidence the court was justified in finding that for many years prior to and at the time of his death the only home of the testator was in Washington, and that “ for many years prior to and up to the time of his death he had the intention and purpose of not returning to Cambridge to live, but of always remaining, living, and having his home in Washington ”; and upon these and the other facts found as stated in the report, the ruling that the “ testator was not an inhabitant of Cambridge at the time of his death ” was correct, and the ruling must stand as the law of the case unless the proceedings which have taken place in the Probate Court of Middlesex County conclusively show that for the purposes of this case the residence of the testator at the time of his death must be regarded as in Cambridge. The plaintiff contends that those proceedings are thus conclusive, and that paroi testimony is inadmissible to vary or contradict the record. For the purposes of this discussion we assume without deciding that it sufficiently appears by the record of the Probate Court that the court found that the residence of the testator was in Cambridge, and that jurisdiction was assumed upon that ground. Prior to Rev. Sts. c. 83, § 12, where, upon a petition for administration, the Probate Court had adjudicated upon the place of residence of the deceased, and upon that adjudication had assumed jurisdiction and proceeded to the settlement of the estate, the true place of residence was open to inquiry in collateral proceedings, even though such an inquiry should result in [81] showing that the adjudication was wrong and the subsequent proceedings were all void for want of jurisdiction. The authorities on this are reviewed, and the reasons for the rule are stated in Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Rev. Sts. c. 83, § 12, with some unimportant changes, is now Pub. Sts. c. 156, § 4, and is as follows: “ The jurisdiction assumed in any case by the court, so far as it depends on the place of residence of a person, shall not be contested in any suit or proceeding, except in an appeal in the original case, or when the want of jurisdiction appears on the same record.” Doubtless this provision was inserted in the Revised Statutes in consequence of several prior decisions of this court, such as Cutts v. Haskins, 9 Mass. 543, where the law as then existing seemed sometimes to work hardship to innocent persons. See note to this section by the commissioners on the Revised Statutes. Since this statute, whenever there appears upon the record of the Probate Court an adjudication, whether in accordance with the truth or not, as to the residence of a person, the jurisdiction of the court, so far as it depends upon that question, is conclusively presumed in any proceeding involving the validity of any order or decree of the court, or of any proceedings thereunder. In the case now before us that rule is applicable to the defendants. They cannot deny the validity of their appointment as executors, nor that if the plaintiff’s claim is due they are answerable for it. McFeely v. Scott, 128 Mass. 16. Derome v. Vose, 140 Mass. 575. Cummings v. Hodgdon, 147 Mass. 21. It is to be noted, however, that the thing which cannot be contested is the jurisdiction of the court, and that the statute does not say that the place of residence shall not be contested in any other proceeding. The taxes upon which this suit is brought were assessed by the assessors of Cambridge under Pub. Sts. c. 11,-§ 20, cl. 7, the material parts of which are as follows: “ The personal estate of deceased persons shall be assessed in the place where the deceased last.dwelt. Before the appointment of an executor or administrator it shall be assessed in general terms to the estate of the deceased, and the executor or administrator subsequently appointed shall be liable for the tax so assessed in like manner as though assessed to him.” [82] The assessment of taxes upon deceased persons is not the act of the Probate Court, and the taxes may be assessed whether the court appoints an executor or not. If the tax were assessed by the court as a part of the settlement of the estate, then in proceedings to enforce it the jurisdiction of the court, so far as respects residence, would be conclusively presumed. _ But the tax is not assessed by the Probate Court, and the question of its validity involves no inquiry into the jurisdiction of the court. The adjudication of the Probate Court as to residence is conclusive so far as respects its own jurisdiction, but no further. It cannot be held to shut off all inquiry into the question of residence when that question is being investigated by another tribunal, in a matter not involving the validity of any order or decree of that court or some proceeding thereunder. Under the facts found in this case, the testator was not in fact a resident of Cambridge at the time of his death. The question whether he was such a resident was before the assessors of Cambridge acting as public officers. If he was such a resident, then it was their duty to tax him, otherwise not. That question was to be decided by them in the first instance, and neither the jurisdiction of the Probate Court nor the validity of any decree of the court was to be affected by their decision. Suppose, for instance, that the testator was at the time of his-death' a resident of Worcester, and his estate taxable there,could it be held that the adjudication by the Probate Court of Middlesex County that he was a resident of Cambridge was conclusive upon the assessors of Worcester? To so hold would stretch the statute far beyond its plain reading, for it would make the adjudication of the court as to the residence of the person conclusive not only for the purpose of its own jurisdiction, but upon any other tribunal acting independently of the court. To confine the legal force and effect of the adjudication of the Probate Court as to the residence of the person to its effect upon its own jurisdiction to settle the estate is to keep within the plain reading of the statute, and is in accordance with the purpose for which it was enacted. Nor is there any estoppel of record. Neither the assessors of Cambridge nor the plaintiff were parties to the proceedings in [83] the Probate Court. There is no mutuality. Braintree v. Hingham, 17 Mass. 432. Brigham v. Fayerweather, 140 Mass. 411. There was no estoppel in pais. There is no evidence that the defendants made whatever statements they did make with the intent that the city should rely upon them, nor that the assessors did rely upon them. Tracy v. Lincoln, 145 Mass. 357. Stiff v. Ashton, 155 Mass. 130. Lincoln v. Gay, 164 Mass. 537. Traders’ National Bank v. Rogers, 167 Mass. 315. Shepard & Morse Lumber Co. v. Eldridge, 171 Mass. 516. Upon the terms of the report there must be Judgment on the finding.