(205 Mass. 558) SEARS' EX'RS v. INHABITANTS OF TOWN OF NAHANT. there was good cause for the delay or unless the assessors have so found as provided in section seventy-four. No costs shall be allowed (Supreme Judicial Court of Massachusetts. Es- to a complainant who has failed to file a list sex. May 18, 1910.) 1. TAXATION (§ 470*)-ASSESSMENT - ABATEMENT OF TAX. Rev. Laws, c. 12, § 74, provides that no person shall have an abatement of taxes, except as otherwise provided, unless he has brought in to the assessors the list of his estate. Section 77 provides that a person aggrieved by the refusal of assessors to abate a tax may appeal to the county commissioners; but, if the list required to be brought in to the assessors was not brought in within the time specified in their notice, the tax shall not be abated, unless the appellate board finds that there was good cause for the delay, or unless the assessors have so found. Held, that the county commissioners have no power to abate a tax, unless the list was brought in time, or they or the assessors find that there was good cause for the delay. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 841; Dec. Dig. § 470.*] 2. TAXATION (§ 494*)-ASSESSMENT BY COURT. Under Rev. Laws, c. 12, §§ 74, 77, giving the right to appeal to the county commissioners to have an excessive tax abated, on condition that the taxpayer's list be handed in to the assessors in time, or that the assessors or commissioners find that there was good excuse for the delay, and section 78, giving an appeal to the superior court on the same condition, the superior court has simply the same jurisdiction to abate a tax, where the lists were not handed in in time, as the county commissioners. - REVIEW [Ed. Note.-For other cases, see Taxation, Dec. Dig. § 494.*] Report from Superior Court, Essex County; John C. Crosby, Judge. as required by law." Section 78 gives to the taxpayer a right to appeal to the superior court upon the same condition. No The list referred to is the list of his estate not exempt from taxation which, in response to a notice of the assessors, every taxpayer is required to hand in to the assessors. list of any kind was handed in as required by the assessors until long after the time specified in the notice. It is not contended by the petitioners that the assessors found that there was either a reasonable excuse or good cause for the delay; and the appellate court has expressly found that "the petitioners have not shown a reasonable excuse for their delay in not filing a list of personal property within the time specified in the notice given by the assessors for the bringing in of lists, and that there was no good cause for One of the their delay in not doing so." grounds of the defense is that this finding of the appellate court constitutes a bar to the granting of any relief by that court to the petitioners. Shortly stated, the question is whether, in a complaint filed under Rev. Laws, c. 12, § 77, or section 78, the appellate board can make any abatement of a tax where the complainant has not brought in to the assessors a list as required by section 41 of that chapter not found, either by the assessors or by the within the time specified in the notice and is appellate board or court, to have had any rea Complaint by the executors of Frederick R. Sears against the Inhabitants of the Town Although the precise language of the section sonable excuse or good cause for the delay. of Nahant for the abatement of a tax, amount-would seem to be quite decisive, still, inasing to $44,000, assessed in 1908. Finding against petitioners, and case reported to Supreme Judicial Court. Judgment for respond-rate ents. H. E. Bolles, Tyler & Young, and W. C. Rice, for plaintiffs. S. H. Hudson and Philip Nichols, for respondents. HAMMOND, J. This petition for the abatement of a tax upon personal property is filed under Rev. Laws, c. 12, § 78. Section 77 of the same chapter, after providing that a person aggrieved by the refusal of the assessors to abate a tax may appeal therefrom by filing a complaint with the county commissioners, or any board exercising the power of such commissioners for the county in which the property is situated, and that if on a hearing the board finds that the property has been overrated it shall make a reasonable abatement and an order as to costs, further proceeds as follows: "If the list required to be brought in to the assessors was not brought in within the time specified in the notice required by section forty-one, the tax shall no be abated unless the appellate board finds tha: much as the petitioners have made an elaboargument, based as well upon a laborious comparison of the statutes past and present as upon other considerations, to the effect that the question should be answered in the affirmative, and inasmuch also as the question is of considerable pecuniary importance to the parties in this case, and moreover is of general importance as one of practice, it seems well to consider it somewhat at length. It is useful to look into the history of the legislation so far as it relates to the matters involved in the question. In the colony laws there does not seem to have been any provísion for the furnishing of lists; and it was provided that if a taxpayer could satisfy the assessors that he was "overvalued" he, in the quaint language of the times, could be "eased" by them, and if they refused he could appeal to the county court (Law of 1641, Anc. Ch. pp. 69, 70); and in the early part of the provincial period, with the exception of the provision contained in the Special Tax Act of 1692-93, c. 41, §§ 5, 6 (1 Prov. Laws, pp. 167, 168), the law as to the right of abatement seems to have continued substantially For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 91 N.E.-58 the same (St. 1692-93, c. 28, § 6 [1 Prov. Laws, | ment of the assessors was before the lawmakp. 66]; also Anc. Ch. p. 250; St. 1692-93, c. | ing power and the rights were carefully sep41, § 2 [1 Prov. Laws, p. 92]; St. 1699-1700, c. | arated and distinctly defined. Upon one 26, § 8 [1 Prov. Laws, p. 408]). See, also, 1 question there was the right of appeal; on Prov. Laws, pp. 281, 305, 340, 362, 389. But the other there was none. Probably the asas early as 1715 the annual or special tax sessors, at least before the committal of their acts provided that the assessors before mak- warrant to the tax collector, could have “easing the assessment should call upon the in- ed" a taxpayer if they were satisfied that he habitants to bring in "true and perfect lists was "overvalued"; and in considering this of their polls and rateable estate," and im- question the law presumes that they would posed a fine upon any one who should bring act, not capriciously or without restraint, but in a false list; and this form of legislation according to their best judgment and under continued for a number of years. The bring- the obligation of their official oath. But ing in of such a list however was not made a whether their decision was right or wrong, condition precedent to a right to an abate- the taxpayer was bound by it. He was enment, either by the assessors or by the coun- tirely in their hands and at their official ty court. St. 1715-16, c. 11, §§ 4, 5 (2 Prov. mercy. Laws, pp. 21, 22). See, also, among others, 2 Prov. Laws, pp. 57, 85, 117, 148, 179, 180, 217, 256, 298, 515, 735. Compare St. 1730, c. 1 (2 Prov. Laws, p. 549). But in St. 1735-36, c. 13, § 5 (2 Prov. Laws, p. 780), there came a radical change. The section is so significant upon the question before us as to justify a liberal quotation of its exact language: "The assessors, * * Thus continued the law for half a century; and every annual tax act, and every special tax act (so far as disclosed by an examination intended to be reasonably thorough), contained a clause substantially like the one we have just been considering. 2 Prov. Laws, pp. 780, 812, 903, 1034, et passim; 3 Prov. Laws, pp. 99, 167, 401, 977, et passim; 4 Prov. Laws, pp. 16, 155, 262, 397, 898, 972, et passim; 5 Prov. Laws, pp. 19, 105, 408, 758. 1112. 1432, et passim; St. 1780, c. 43; St. 1781, cc. 16, 28; St. 1782, c. 65; St. 1784, c. 25. ** * * It may be remarked in passing that an examination of the provincial statutes above cited shows conclusively that the idea expressed by Metcalf, J., in giving the opinion of the court in Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477, 481, that "by the proa party aggrieved at the sum apportioned on him by assessors, and being refused an abatement by them, might appeal to the sessions for an abatement, in all cases, as a matter of right," was erroneous so far at least as respects the law after 1735. in convenient time before their making the The language is plain and unambiguous. While it gives the right of appeal from the judgment of the assessors as to the question whether a list is true or false, it distinctly says a person who does not bring in a list shall not be admitted to apply to the court of sessions for an abatement. The refusal of the right to go to the court of sessions for an abatement is accentuated by the fact that upon the question whether a list is false there is an appeal to that court. The whole question of appeal to the court from the judg The next material change was made by the general statute of 1785 (chapter 50, § 9). which, after the usual provision for the bringing in of a list to the assessors, provided further that "if any person or persons shall not bring in a list of their estates, as aforesaid, to the assessors, he, she, or they so neglecting or refusing, shall not be admitted to make application to the court of general sessions of the peace for any abatement of the assessment so laid on him, her or them; unless such person or persons shall make it to appear to the said court, that it was not within the power of him, her or them to deliver to the assessors respectively, a list of his, her or their rateable estate at the time appointed for that purpose." The change made by this statute was not against the taxpayer but was manifestly in his favor. It is to be noted that this change was made not in a tax act but in a general law relating to assessors, their power and authority. Inasmuch as it was a general law applicable to all taxes there was no further occasion for inserting in each special or annual tax statute a provision on the subject; and an examination of the subsequent tax acts shows that they contain no special provision relating to the right of abatement. See, for example, St. 1787, c. 56; St. 1788, c. 67a; St. 1789, c. 49; St. 1795, c. 11; St. 1796, c. 51; St. 1797, c. 60; St. 1805, c. 119. sessors (section 19); that in the absence of such a list the assessors should estimate the estate (section 23); and that such estimate should be conclusive upon a person who had not brought in a list unless he could show a reasonable excuse for the omission (section 24). In Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477, it seems to have been thought that under the provisions of this statute it was in the power of the assessors to make an abatement if seasonably asked for, although no list had been carried in. "But," say the court, "after they have refused to make an abatement, the provision is peremptory, that is shall not be made by the county commissioners (the court of common pleas in the present cases), unless a list has been carried in, and sworn to, if required. If a party intends to enter upon a litigation, he must prepare himself by taking the prerequisite measures prescribed by the statute." See also Porter v. County Commissioners of Middlesex, 5 Gray, 365, for a full discussion of this subject. It was argued by the petitioners in that case that under St. 1853, c. 319, § 3, it was sufficient to sustain an appeal if the list was given at any time before the application for an abatement. But it was said by Shaw, C. J. (page 368): "This argument is plausible, but we think not sound. It overlooks a distinction, kept up in these provisions for taxation, between the power of the assessors to abate the tax of an individual, and the right of such individual to appeal from the decision of the assessors to a tribunal, to some extent judicial, originally the court of sessions, now the county commissioners, to revise the final decision of the assessors. The law seems to have been willing to trust the same board of assessors, who made the assessment originally, to correct any error into which they themselves may have fallen. Knowing the grounds on which they at first proceeded, whether with or without a list given in, if the individual could satisfy them that, in his particular case, they had overrated him, they might make an abatement. But if a party intends to put himself upon his strict rights and secure a right to appeal to a higher tribunal, who may proceed upon other views of the law, and other evidence of the facts, than those acted on by the assessors, he should put himself right at the outset, by filing his list before an assessment. This distinction is made as well in statutes formerly in force, as in the Revised Statutes." See, also, Otis Co. v. Ware, 8 Gray, 509. St. 1857, c. 306, does not seem to have made any material change in the law affecting this matter. Except for the substitution of county commissioners for the court of general sessions of the peace as the appellate board, thus stood the law until the Revised Statutes. By Rev. St. 1836, c. 7, § 40, it is provided that "no person shall have any abatement made by the commissioners, unless he shall have brought in a list of his estate to the assessors, or shall show good cause for not having so done, and unless he shall, if required by the assessors, have made oath to the truth of the same." As originally reported by the commissioners on the revision of the statutes it read thus: "No person shall be entitled to have any abatement made, either by the assessors, or county commissioners, or other persons mentioned in the preceding section [meaning other public officers in the respective counties who by law exercise the powers of county commissioners] unless he shall have brought in a list of his estate to the assessors, or shall show good cause for not having so done." Comm'rs Report on Rev. St. c. 7, § 42. In a note to this section the commissioners say that "this provision is submitted for the purpose of removing an ambiguity in the existing law-that is, whether the present act (St. 1785, c. 50, §§ 9, 10), which denies abatements in cases where lists are not brought in, authorizes both assessors and county commissioners, or only the latter, to refuse abatements in such cases." The legislative committee to whom the whole report of the commissioners was referred for consideration recommended that the following amendments be made, namely, first that the clause "or other officers mentioned in the preceding section" be stricken out, and by adding at the end of the section "and unless he shall, if required by the assessors, have made oath to the truth of the same." Both amendments were adopted, the first probably because there were no officers who under the then existing laws held the power of county commissioners as to the abatement of taxes. As thus amended by the committee, the prohibition as to making abatements except under the conditions named in the section extended as well to the assessors as to county commissioners. That was not satisfactory to the Legislature, and that body with the issue sharply before it, struck out the prohibition so far as respected the assessors, but let it stand only as to the county commissioners, thereby plainly showing its determination that the right to an abatement In Gen. St. 1860, c. 11, § 46, the law is where no list had been filed should be differ- stated thus: "No person shall have an abateent before the assessors from that before ment unless he has filed with the assessors a the appellate board. Previous sections of list subscribed by him of his estate liable to the same chapter (chapter 7) provided that taxation, and made oath that it is full and the list should be brought in within the time accurate according to his best knowledge and mentioned in the notice given by the as-belief. When such list is not filed within the time specified by the assessors for bringing | ever since 1735. These two sections were it in, no complaint from the judgment of the enacted exactly as reported by the commisassessors shall be sustained by the county sioners on the public statutes, and there is commissioners, unless they are satisfied that nothing in their report to show that they inthere was good cause why such list was not tended to change the prior law on this subseasonably brought in." In Charlestown v. ject. But it is unnecessary to consider County Commissioners, 101 Mass. 87, 90, it whether the view of the petitioners as to the was held that the first branch of this section true construction of these two sections is was intended to be "a peremptory and ab- correct. The language of the sections of solute denial of all right to have an abate- Rev. Laws, c. 12, upon which the case turns ment without first filing with the assessors is very different. the list under oath," and that under the second branch, even when such a list is filed, if it is not filed within the time specified by the assessors for bringing in the lists, a complaint can be maintained before the county commissioners only when "they are satisfied that there was good cause why such list was not seasonably brought in." St. 1865, c. 121, providing that, where the list is not filed within the time specified in the notice the assessors shall not afterwards abate any part of the tax on personal estate unless the tax exceeds by more than 50 per cent. the amount which would have been assessed if the list had been seasonably brought in, etc., has no application whatever to proceedings before the county commissioners. Before this statute, while there was no appeal to the county commissioners where a list had not been filed within the time prescribed in the notice of the assessors, yet the taxpayer by subsequently filing a list could apply to the assessors and they could reduce the tax to its proper amount. The plain purpose of this statute was to limit the power of the assessors as to the cases in which they could abate and the amount of abatement they could make. It in no way concerned the jurisdiction of the county commissioners or the right of the taxpayer to appeal to that board. By section 74 of that chapter it is provided that no person "shall * have an abatement, except as otherwise provided, unless he has brought in to the assessors the list of his estate as required by" the notice. And if the list is not filed within the time specified by the notice, then only a certain prescribed part of the tax shall be abated. The next material section is section 77, the substance of which is stated at the beginning of this opinion. Whatever doubt may have been thrown upon the law on this subject by the Public Statutes, or whatever interpretation may be given to the sections therein contained as to it, the whole subject seems to have been more carefully considered in the revision of 1902; and the change, if any, made in the former practice by the Public Statutes was rectified so as to leave the law as it stood prior to the Public Statutes. There can be no doubt that by the express language of Rev. Laws, c. 12, §§ 77, 78, when considered in connection with the other provisions of the same chapter and read in the light of previous legislation upon the subject, the county commissioners have no power to abate a tax where the list was not brought in within the time specified in the notice given by the assessors before making the assessment, unless either the assessors or the county commissioners find that there was good cause or reasonable excuse for the delay. The superior court has simply the same jurisdiction as the county commissioners (section 78). It follows that upon the facts found in this case, as hereinbefore stated, the petition should be dismissed. It becomes unnecessary to consider the other grounds of defense. According to the terms of the report "judgment is to be entered in favor of the respondents, with such costs and expenses as they may be entitled to, to be taxed by the superior court"; and it is So ordered. Gen. St. 1860, c. 11, § 46, was re-enacted in Pub. St. 1882, c. 11, § 72, but with the addition of these words, "and except in cases provided for in the following section." The "following section" is substantially like St. 1865, c. 121, except that in the place of the words "they [the assessors] shall not afterwards abate any part of the tax" are found the words "no part of the tax shall be abated." That is to say, the clause applying expressly to the assessors is apparently changed to a clause applicable to any tribunal having jurisdiction of a complaint for abatement. And it is argued with force by the petitioners that under these two sections, namely sections 72, 73, a taxpayer had on appeal the same right to be heard by the county commissioners as originally by the assessors, even if he had filed no list within the time prescribed by the notice. As thus construed these two sections would have made a great change in the right of the taxpayer to appeal from the assessors as it had On review by the full Supreme Judicial existed in the province and commonwealth Court on the report of a single justice, the 1. (205 Mass. 553) MEADS et al. v. EARLE. APPEAL AND ERROR (§ 1008*)-REVIEW- For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes wrong. ING. justice's findings are to stand, unless plainly | dependently of the attestation clause, she by words and conduct acknowledged and declared [Ed. Note.-For other cases, see Appeal and Er- the will before the subscribing witnesses and ror, Cent. Dig. §§ 3970-3973; Dec. Dig. § 1008.*] that the subscribing witnesses signed the 2. WILLS (§§ 111, 123*)-EXECUTION-SIGN- attestation clause in her presence at her reTestatrix, an intelligent, self-reliant wo- quest and upon her acknowledgment and decman, on the eve of her departure abroad, at-laration that it was her will, although neither tempted to draw her own will without assist- of them saw her signature." ance, by using a blank form, which she filled in with her own band, except where it was signed by the subscribing witnesses. She started with the exordium, filled up to read, "Be it remembered that I, Sarah J. Armstrong, of Cincinnati, Ohio, being of sound mind," etc., and then wrote in detail her various bequests, filling the proper spaces in the testimonium and attestation clauses, putting her name and residence and the pronouns in the proper places in the latter clause. After the attestation clause, and below the dotted lines, indicating the places for the signatures of the witnesses, she wrote a clause nominating the executors and requesting that they be not required to give bond; but she did not sign the will at the end of the instrument. Held that, it having been properly found that she wrote her name at the beginning of the will with the intention that that act should constitute a signing thereof, the will was signed and attested and subscribed as required, and entitled to probate. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 267-275; Dec. Dig. 88 111, 123.*] Report from Supreme Judicial Court, Norfolk County; Henry K. Braley, Judge. Having so found he ruled that the document was signed, attested and subscribed "within the meaning of the statute," and that it was a valid will. The case is before us upon his report. If the ruling requested by the appellee should have been given, a decree is to be entered affirming the decree of the probate court; otherwise a decree is to be entered reversing that decree, admitting the will to probate and remanding the case to that court for further proceedings. The findings of the single justice are to stand unless plainly wrong. At the time of the execution of the will Miss Armstrong was temporarily stopping at the Manhattan Hotel in New York City, on the eve of a voyage to Italy. It is a reasonable inference from the testimony that the will was drafted Just before its execution. She had procured a blank form containing at the beginning the following printed words, to wit: "Be it re ....... membered that I, of ....... ..., in the Application by Albert H. Meads for the commonwealth of Massachusetts, being of probate of the will of Sarah J. Armstrong, sound mind and memory, but knowing the deceased, to which Eugenia M. Earle filed uncertainty of this life, do make this my last objection. From a decree of the probate will and testament. After the payment of court disallowing the will, proponents ap- my just debts and funeral charges, I bepealed to the Supreme Judicial Court, where it was held valid by a single justice, and queath and devise as follows." At the end of the blank was printed the in testimonium case reported to the full court. Decree of clause, blanks being left for the date, and probate court reversed, and will admitted to following that clause was the printed atprobate, and case remanded. Boyden, Palfrey, Bradlee & Twombly (John G. Palfrey and Howland Twombly, of counsel), for appellants. Fredk. J. Ranlett and John S. Patton, for appellee. HAMMOND, J. This was an appeal from a decree of the probate court disallowing an instrument as the last will of Sarah J. Armstrong. The case was heard by a single justice of this court upon an inspection of the will, the agreed facts and the depositions of the three subscribing witnesses. The appellee requested the judge to rule as matter | of law that the instrument was not signed by the testatrix and attested and subscribed in her presence by three competent witnesses in accordance with the requirements of Rev. Laws, c. 135, § 1. The judge declined so to rule and found as facts "that so far as the will is in manuscript, the handwriting including her name or signature is that of Sarah J. Armstrong; that although she did not sign at the end of the instrument, yet when she wrote her name at the beginning of the will, it was with the intention that this act was a signing of the will; that in ...... ...... ..... testation clause as follows: "On this With this blank before her she begins, apparently unaided, to write her will. She first makes the proper changes in the exordium. She fills the blank space after the word “I” with her name. She writes in the next blank space, "Cincinnati, Ohio," and crosses out the words "in the commonwealth of Massachusetts." As thus changed the exordium reads: "Be it remembered that I, Sarah J. Arm For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |