Morrison v. Berkshire Loan & Trust Co.

De Courcy, J. It appears in the agreed statement of facts that Mary D. Hass died on September 22, 1910, testate, and that at the time of her death she had an account with the Berkshire Loan and Trust Company of Pittsfield in this Commonwealth. Her will was proved and allowed by the Surrogate’s Court of the County and State of New York and John D. Hass was appointed executor and duly qualified as such. On November 30, 1910, the defendant paid over to that executor the deposit, then amounting to $1,334.08. Four years later the plaintiff was duly appointed administrator of the estate of said Mary D. Hass in our county of Berkshire, — no document purporting to be the will of said Mary D. Hass having been filed for probate in that county. After making demand on the defendant for the payment to him as administrator of said $1,334.08, on March 23, 1916, he brought this action of contract for the recovery of that sum. with interest. The trial judge found that the domicil of Mary D. Hass at the time of her death was in West Stockbridge in the county of Berkshire, refused to make certain rulings requested by the plaintiff and found for the defendant. . This case was argued with that of Morrison v. Hass, ante, 514. For the reasons stated therein we must assume that the New York court had jurisdiction to admit the will of Mrs. Hass to original probate and that at common law John D. Hass, as executor, had a right to collect the debt due to the estate in this jurisdiction, provided the debtor was willing to make payment without invoking the protection of our courts. Rackemann v. Taylor, 204 Mass. 394. Gardiner v. Thorndike, 183 Mass. 81. And see Kennedy v. Hodges, 215 Mass. 112; Smith v. Second National Bank of New York, 169 N. Y. 467. The contention of the plaintiff, that the payment of the deposit by the defendant was invalid by reason of St. 1909, c. 527, § 7, cannot prevail. Under that statute "Any person or corporation that delivers or transfers any securities or assets belonging to the estate of a non-resident decedent before all taxes imposed thereon by the provisions of this act have been paid or secured according to law, shall be liable for such tax in an action of contract brought by the Treasurer and Receiver General.” The record in this case makes no reference to the existence of any inheritance tax, nor is this a proceeding by the proper State official to enforce a liability [521] for such a tax. This action is one by an administrator to compel the defendant to pay a second time the entire deposit, on the ground that the first payment was unauthorized and invalid. As the plaintiff has not relied upon or referred to R. L. c. 148, § 3, as applicable to this case, we deem it unnecessary to consider it. See Gardiner v. Thorndike, 183 Mass. 81, 85. Exceptions overruled.