Babcock v. Leopold Morse Home for Infirm Hebrews & Orphanage

Rugg, C. J. The plaintiff is the tax collector of the town of Milton. He brings this action to recover taxes assessed upon the defendant’s real estate in that town for 1912, 1913 and 1914. The [421] defendant is a charitable corporation entitled to an exemption from taxation under St. 1909, c. 490, Part I, § 5, cl. 3, for its “real estate owned and occupied” by it or its officers for the purposes for which it was incorporated. But it is not entitled to exemption on any other ground. The defendant owned real estate which for several years previous to 1912 was adapted for and used as a home for aged and infirm and for children. The aged and infirm were gradually removed and for some time it was used for children only. Modern philanthropic methods tend toward providing homes for children in fam-_ ilies rather than gathering them in a general, home. The defendant was authorized by St. 1912, c. 113, to transfer the income of all its property to another charitable corporation working in the same field, That act was accepted, a decree of the court was entered according to its terms, and the defendant has paid its income to the other corporation. The children were all removed from the defendant’s home in March, 1912. The defendant voted to allow the Canterbury Street Home to have such of its furniture and household equipment as it wanted. Some has been taken and the rest left at the defendant’s home in Milton. Since the children have been removed, a caretaker has resided in the house. The ' . . board of trustees of the defendant in April, 1912, granted the request of the Hebrew Women’s Sewing Association to use the premises for “ Country Week” for poor children. There was testimony to the effect that once at least in each of the years 1912, 1913 and 1914 meetings of the trustees or officers of the defendant had been held in the house, but the record books only showed records of meetings held in Boston. There was testimony from several witnesses that since March, 1912, the premises had been occupied only by the caretaker. The judge found that the real estate was not being used for the purposes for which the defendant was incorporated and found for the plaintiff. The defendant is not entitled to an exemption from taxation unless the real estate is occupied for the charitable purposes for which it was organized. Charlesbank Homes v. Boston, 218 Mass. 14. Such occupancy means something more than that which results from simple ownership and possession. It signifies an active appropriation to the immediate uses of the charitable cause for which the owner was organized. The extent of the use, although [422] entitled to consideration, is not decisive. But the nature of the occupation must be such as to contribute immediately to the promotion of the charity and physically to participate in the forwarding of its beneficent objects. Phillips Academy v. Andover, 175 Mass. 118. Redemptorist Fathers v. Boston, 129 Mass. 178. Amherst College v. Assessors of Amherst, 173 Mass. 232. The burden is upon one seeking an exemption from taxation to make out his right to it. The finding of the judge was against the defendant. It cannot be said in the light of the principles which have been established that the facts in the case at bar show that the property of the defendant was exempt from taxation. The meetings of officers or trustees occasionally at the house, and the leaving of some of the furniture there, do not constitute actual occupancy of the building for the purpose of a home. The rulings given were sufficiently favorable to the defendant and no reversible error has been committed. Exceptions overruled.