[G. L. c. 59, § 18, Cl. 1 the town in which the business was carried on, although it furnished protection to the business, derived no taxes therefrom.1 This injustice was remedied in 1742 in the annual tax act of that year by providing that goods, wares and merchandise and other stock in trade belonging to merchants, traders or factors should be taxed in the town in which the business of the owner was carried on.2 In 1753 the requirement was added that the owner must maintain a store, shop or wharf in order to justify the taxation of his goods in a town other than that of his domicile. These provisions were continued in the annual tax acts without change for many years. In 1814 stock employed in manufactories was also made taxable where it was located,' and with some minor changes the statute remained in force until the more comprehensive provisions of the 1918 statute rendered it no longer necessary.

3

In 1821 it was provided that horses and cattle should be taxed in the town where they were kept throughout the year rather than at the domicile of the owner; and in 1830 provision. was made for the taxation of machinery employed in manufacture in the town in which the manufacturing was carried on. In 1903 the merchandise of foreign corporations was made taxable where it was situated,' and in 1909 the same rule was applied to merchandise, machinery and animals of individuals. not resident in the commonwealth. Finally in 1918 the present statute was enacted, and all tangible personal property made taxable where it was situated on the first day of April in each year.9

It is not however to be supposed that property is to be deemed

1 Amesbury etc. Mfg. Co. v. Amesbury, 17 Mass. 461 (1821).

2 St. 1742-3, c. 31, § 8.

3 St. 1753-4, c. 10, $8.

4 See Amesbury etc. Mfg. Co. v. Amesbury, 17 Mass. 461 (1821); Hittinger v. Westford, 135 Mass. 258 (1883); Boston Loan Co. v. Boston, 137 Mass. 332 (1884). For the interpretation of the statute in detail see the first edition of this work, pages 225 to 230 inc.

5 St. 1821. c. 107, § 3; and see Hicks v. Westport, 130 Mass. 478 (1881); Pierce v. Eddy, 152 Mass. 494 (1891).

6 See G. L. c. 59, § 18, cl. 2, infra page 241.

7 St. 1903, c. 437, §71; and see Tobey v. Kip, 214 Mass. 477 (1913); Sullivan v. Ashfield, 227 Mass. 24 (1917); Atlantic Maritime Co. v. Gloucester, 228 Mass. 519 (1917); Collector of Boston v. Rising Sun Street Lighting Co., 229 Mass. 494 (1918).

8 St. 1909, c. 516, § 2.

9 St. 1918, c. 129, § 1.

G. L. c. 59, § 18, Cl. 2]

to be situated in a town within the meaning of the statute merely because it is within the town for a temporary purpose on the first day of April, and property is undoubtedly taxable in the town where it is ordinarily kept, rather than where it happens to be on the taxing day.10

Machinery and Personal Property Leased for Profit

Second, Machinery employed in any branch of manufacture, or in supplying or distributing water, including machines used or operated under a stipulation providing for the payment of a royalty or compensation in the nature of a royalty for the privilege of using or operating the same, and all tangible personal property within the commonwealth leased for profit, shall be assessed where such machinery or tangible personal property is situated, to the owner or any person having possession of the same on April first.

3

This statute, originating in 1830,1 remained in much the same form until 1887, providing simply that machinery employed in any branch of manufacture should be assessed where located to the owner in possession on the taxing day. In 1887 the provision as to royalty was added and in 1889 the provision as to personal property leased for profit. The statute of 1918 making all tangible property taxable where located * . deprived this statute of much of its importance; as applied to individuals it differentiates the classes of property to which it relates from other tangible personal property only by making the property to which it relates taxable to the person in possession rather than to the owner, if the assessors so elect.

To be taxed under this clause the property must not only be machinery (though not necessarily machinery affixed to the buildings) but it must also be employed in some branch of

5

10 See the following decisions under earlier statutes. Hittinger v. Boston, 139 Mass. 17 (1885); Ingram v. Cowles, 150 Mass. 155 (1889); Pierce v. Eddy, 152 Mass. 594 (1891); Atlantic Maritime Co. v. Gloucester, 228 Mass. 519 (1917). 1 St. 1830, c. 151, §2.

2 St. 1887, c. 125.

3 St. 1889, c. 446. In 1894 (St. 1894, c. 304) a provision was added to enable the town of the owner's domicile to contest with the town where the machinery was located as to its situs for taxation. This was rendered unnecessary by St. 1918, c. 129, making all tangible property taxable where located and stricken out.

4 St. 1918, c. 129, now G. L. c. 59, § 18, cl. 1, supra page 239.

5 Lowell v. Middlesex County Commissioners, 152 Mass. 372 (1890); Troy Cotton & Woolen Manufactory v. Fall River, 167 Mass. 517 (1897). It should

[G. L. c. 59, § 18, Cl. 2 manufactures, and machinery not so employed is not taxable under this clause." Furthermore it must be employed in an established place of business, and not be merely portable property moving from place to place."

This clause is still of great importance in connection with the taxation of corporations. It was provided in 1832 that all machinery employed in manufacture and belonging to any corporation or person should be assessed where situated, and that in assessing the shares of a manufacturing corporation the value of the machinery locally taxed should be deducted. This last provision is still in force in respect to the corporate franchise tax, and although the statutes do not now in terms require the local assessment of the machinery of a domestic corporation, it is well settled by long practice and plain implication that the clause now under consideration, so far as it relates to machinery, unlike the other clauses of this section, applies to domestic corporations; and the land, buildings and machinery of mills and factories are valued for taxation in the same manner whether the owner is a natural person or a corporation.1o

Where the whole manufacturing plant of land, buildings and machinery belonging to one corporation and locally taxable is of more value if kept together and used for mill purposes than if the machinery is removed from the buildings or if the buildings and machinery are removed from the land, each of these items should be valued for taxation as it is used in connection

be remembered that machinery is taxable as personal property even if affixed to the building so as to constitute real estate as between vendor and vendee. G. L. c. 59, § 3, supra page 190.

6 Machinery employed in manufacture does not include pipes and mains for distributing water, Dudley v. Jamaica Pond Aqueduct Co., 100 Mass. 183 (1868); Coffin v. Artesian Water Co., 193 Mass. 274 (1906), machinery used in cutting ice, Hittinger v. Westford, 135 Mass. 258 (1883), or in quarrying and breaking stone, Wellington v. Belmont, 164 Mass. 142 (1895), or in printing a newspaper, Barron v. Boston, 187 Mass. 168 (1905). It does include mains, pipes and meters used in distributing gas, Commonwealth v. Lowell Gas Light Co., 12 Allen 75 (1866); and since the enactment of St. 1907, c. 329, the machinery of water companies has been specifically made subject to local taxation.

7 Ingram v. Cowles, 150 Mass. 155 (1889):

8 Infra pages 531, 539.

9 G. L. c. 63, § 30, 3 (a), infra page 539.

10 Troy Cotton & Woolen Manufactory v. Fall River, 167 Mass. 517 (1897). The matter is not left so wholly to implication by the General Laws as it was under the statutes previously in force, as all personal property of domestic corporations, except machinery employed in manufacture, is now expressly exempt from local taxation.

G. L. c. 59, § 18, Cl.3] with the others; but the machinery should be assessed separately from the land ånd buildings, and the owner is entitled to an abatement if the land and buildings are overassessed, even if the land, buildings and machinery taken together are not.12

The provision as to personal property leased for profit formerly applied to foreign corporations 13 though doubtless not under the present law, as there is no provision for the deduction of the value of such property from the corporate excise tax. Property must be actually leased to come within this portion of the statute.14

Personal Property of Deceased Persons

Third, Personal property of deceased persons, before the appointment of an executor or administrator, 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 as though assessed to him.

Prior to the enactment of the Revised Statutes of 1836 there was no special provision for the taxation of the personal property of deceased persons, and it was held that a tax could not legally be assessed to a person after his decease, but the assessment should be made upon his estate in the hands of his next of kin or executor or administrator or whoever else might be in possession of it.1 Recognizing the difficulties thus imposed upon the assessors, the commissioners on the Revised Statutes prepared the provision that was enacted therein, to the effect that personal estate of deceased persons in the hands of their executors or administrators and not distributed should be assessed to the executor or administrator in the town where the deceased last dwelt, until the executor or administrator gave notice to the assessors that the estate had been distributed. In 1849 it was questioned by the court whether the estate of a deceased person could be assessed to a person named as executor in the will before the will had been admitted to probate even if it was

11 Troy Cotton & Woolen Manufactory v. Fall River, 167 Mass. 517 (1897). 12 Hamilton Mfg. Co. v. Lowell, 185 Mass. 114 (1904).

13 Lamson Consolidated Store Service Co. v. Boston, 170 Mass. 355 (1898). 14 Rising Sun Street Lighting Co. v. Boston, 181 Mass. 211 (1902).

1 Cook v. Leland, 5 Pick. 236 (1827).

2 Smith v. Northampton Bank, 4 Cush. 1 (1849).

Cl. 3

[G. L. c. 59, § 18, subsequently admitted and the executor duly confirmed," and in 1852 it was provided by statute that the estate in the hands of an executor or administrator should be liable for taxes assessed upon the personal estate of a deceased person before the appointment of such executor or administrator.3 The General Statutes consolidated the pertinent clause of the Revised Statutes and the statute of 1852 omitting the words "in the hands of their executors or administrators and not distributed. " The next change occurred in 1878 when it was provided that the personal property held by an executor or administrator should be taxable to him for three years after his appointment, unless the same had been distributed and notice of such distribution given to the assessors, stating the names and residences of and the amounts paid to the several parties interested and resident in this state,* and furthermore that after personal property had been assessed to an executor, administrator or trustee, an amount not less than that for which he was last assessed should be deemed to be the amount for which he was assessable unless a true list of his taxable property was brought in. In 1912 it was provided that the notice of distribution should be under oath, and that after notice of final distribution had been given, no list need be filed."

During the period between 1878 and the enactment of the income tax in 1916 the assessment of the estates of deceased persons usually amounted more to a contest of wits between the executors or administrators of the deceased and the assessors of the town in which he last dwelt than to an attempt in good faith by all parties to determine the real amount of taxable property belonging to the deceased or to his estate on the assessment day. The disclosure incidental to proceedings in the probate court not infrequently revealed the fact that persons who had been paying a very moderate amount of taxes left millions of dollars in taxable intangible property; and the representatives of the deceased frequently endeavored to withhold the real extent of the estate so that they could distribute the property or convert it into non-taxable securities before it could be taxed, while on the other hand the assessors often watched eagerly for some failure on the part of the executors to comply 3 St. 1852, c. 234.

4 St. 1878, c. 189, § 2. St. 1878, c. 189, § 3. St. 1912, c. 238, § 1.