G. L. c. 59, § 18, Cl.3]

with the technical requirements of the tax laws which by way of penalty would leave the entire estate subject to taxation for at least one year."

8

The enactment of the income tax in 1916 and the withdrawal of intangible property from local taxation ended this unfortunate condition of affairs; and in 1918 the statute which provided that tangible property should be assessed where located put a final end to the struggles over the taxation of the estates of deceased persons so far as local taxation was concerned. The requirement of notice of distribution was repealed and the statute was reduced to its present form, applicable only to the estates of deceased persons before the appointment of an executor or administrator." After the appointment of an executor or administrator he is taxable as owner under the general provisions of the tax laws in the town in which the property is situated.

Some of the decisions under the earlier law are still applicable, in spite of the change in the statutes. Personal property of a deceased person is taxable to the executor until it is distributed. What effects a distribution is a matter of the substantive law of probate, and it is held that if adistribution has actually taken place, the estate is no longer taxable to the executor or administrator although his accounts showing such distribution have never been allowed by the probate court, provided that the executor or administrator and the distributees are different persons so that the distribution is an actual rather than a symbolic act.10 When however the property of the deceased is bequeathed in whole or in part to trustees who are the same persons as the executors under the will, it is well settled that no transmutation of the property from the executors to the trustees can take place until the accounts of the executors showing the distribution of the property by themselves as executors to themselves as trustees are allowed by the probate court,11

As to the requirements during this period, see the first edition of this work, pages 240 to 247 inc., also, Cody v. Spear, 214 Mass. 241 (1913); Sears v. Nahant, 215 Mass. 329 (1913).

8 St. 1918, c. 129.

? The special requirement that a tax on an executor or administrator should not be less than in the preceding year (supra, note 5) was also repealed in 1918. St. 1918, c. 50, § 1.

10 Carleton v. Ashburnham, 102 Mass. 348 (1869); Williams v. Acton, 219 Mass. 520 (1914).

11 Hall v. Cushing, 9 Pick. 395, 409 (1830); Conkey v. Dickinson, 13 Met. 51 (1847).

[G. L. c. 59, § 18, Cl. 5 and consequently, as the taxation of personal property depends upon ownership and not possession, property which executors have gone through the form of distributing to themselves as trustees without the sanction of the probate court is still taxable to them as executors.12

A valid tax cannot be assessed upon a person who is already deceased 13 or upon the "estate" of a person deceased after the appointment of an executor or administrator.14 A tax assessed to an executor on the personal property of the deceased is the debt of the executor and not of the deceased and consequently an action to recover the tax may be brought against the executor more than one year after the date of his appointment.15

Personal Property of Joint Owners

Fourth, Personal property of joint owners or tenants in common, other than partners, may be assessed to one or more of such owners, and any person so assessed shall be liable for the whole tax.

In 1882 it was provided that personal property of joint owners or tenants in common, other than partners, should be assessed to such owners according to their respective interests in the cities and towns in which they respectively resided.1 In 1918 the statute was put into its present form.2

Conduits, Wires, Pipes and Poles

Fifth, Underground conduits, wires and pipes laid in public ways, except such as are owned by a street railway company, and poles, underground conduits and pipes, together with the wires thereon or therein, laid in or erected upon private property or in a railroad location by any corporation, except poles, underground conduits, wires and pipes of a railroad corporation laid in or erected upon the location of such railroad, and except poles, underground conduits,

12 Hardy v. Yarmouth, 6 Allen 277 (1863); Welch v. Boston, 211 Mass. 178 (1912); Sears v. Nahant, 215 Mass. 329 (1913).

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

14 Wood v. Torrey, 97 Mass. 321 (1867).

15 Dallinger v. Davis, 149 Mass. 62 (1889). G. L. c. 260, § 11, providing that actions founded on contracts made or acts done by an executor or administrator should be brought within one year from the time the cause of action accrues probably has no application to an action to recover a tax, which is not based upon any contract made or act done by an executor or administrator.

1 St. 1882, c. 165.

2 St. 1918, c. 129, § 1, cl. 4.

G. L. c. 59, § 18, Cl. 5]

wires and pipes laid in or erected upon any right of way owned by a street railway company, shall be assessed to the owners thereof in the towns where laid or erected.

Prior to 1902 the only special provision which could be invoked to authorize the local taxation of underground pipes and similar structures used for the distribution of some commodity to the public was that relating to the taxation of machinery used in manufacture;' and the taxability of pipes under that clause depended upon whether the commodity was manufactured or was distributed in its natural state. In 1902 it was provided that underground conduits, wires and pipes laid in public streets by any corporation except a street railway company should be assessed to the owners thereof in the cities and towns in which they were laid; but after a decision that water pipes and the mains for distributing water to the public laid through private land were not taxable under this statute and so, being owned by a foreign corporation and considered by the assessors to be personal property, under the laws then in force escaped all taxation in this commonwealth, the statute was amended to include poles, pipes and underground conduits laid in private land.

3

Pipes, rails and wires laid in public highways remain personal property and belong to the corporation which maintains them;* but it would seem that such objects when erected in or upon private land might be real estate for the purposes of taxation whatever the agreement might be with the owner of the land. The statute, however, by constituting them one of the exceptions to the general rule for the taxation of personal property, declares by inference that such objects are personal property for the purposes of taxation. For the same reason it was inferred by the court that the statute had no reference to what is unquestionably real estate, and it was held that the "rights of way" of street railway companies which are impliedly exempted from local taxation by the statute are their rights in public

1 G. L. c. 59, § 18, cl. 2, supra page 241.

2 Commonwealth v. Lowell Gas Light Co., 12 Allen 75 (1866); Dudley v. Jamaica Pond Aqueduct Co., 100 Mass. 183 (1868).

3 Coffin v. Artesian Water Co., 193 Mass. 274 (1906).

4 French v. Jones, 191 Mass. 522 (1906).

G. L. c. 59, § 3, supra page 190.

[G. L. c. 59, § 18, Cl. 6, 7 ways only. In 1913 the legislature recast the law into its present form. It has been held however that the exception in favor of street railways, like that in favor of railroads, although it has been extended to cover any right of way owned by them, applies only to poles and wires upon their location, and does not include the poles and wires of a transmission line laid across private land by virtue of an easement acquired for the purpose; and such structures are consequently subject to local taxation.

Partnership Property

Sixth, Partners, whether residing in the same or different towns, may be jointly taxed under their firm name, in the place where their business is carried on, for all the personal property employed in such business, except ships or vessels. If partners have places of business in two or more towns, they shall be taxed in each of such places for the proportion of property employed therein. If so jointly taxed, each partner shall be liable for the whole tax.

Seventh, Ships or vessels, other than those in the interstate or foreign carrying trade as to which return is made under section eight, owned by a partnership, shall be assessed to the several partners in their places of residence, if within the commonwealth, proportionally to their interests therein; but the interests of the several partners residing without the commonwealth shall be assessed to the partnership in the place where its business is carried on.

The statute relating to the taxation of partnership property has received no material modification since it appeared in the Revised Statutes of 1836, except for the introduction of the exception relating to ships and vessels in 1859. "Place" in the first sentence of the statute means city or town; in the second sentence a specific spot within a city or town.1 "Place of business" is to be taken in its ordinary and popular sense; it does not necessarily mean a place where the buying or selling of goods is carried on, or a place in the exclusive occupation and control of the partnership; but it does exclude a place where the partners' work is carried on under the exclusive control

6 Connecticut Valley St. Ry. Co. v. Northampton, 213 Mass. 54 (1912). 7 St. 1913, c. 458.

8 Northern Massachusetts St. Ry Co. v. Westminster, 227 Mass. 547 (1917). 1 Palmer v. Kelleher, 111 Mass. 320 (1873).

2 Barker v. Watertown, 137 Mass. 227 (1884); Duxbury v. Plymouth County Commissioners, 172 Mass. 383 (1899).

3

G. L. c. 59, §18, Cl. 6, 7] and direction of another. An unincorporated association doing business in the manner of corporations, the personal property of which is held in trust for beneficiaries whose interests are represented by transferable shares, is a partnership and not a trust if the control of the property is in the hands of the shareholders rather than of the trustees, and the personal property of such an association is taxable to the trustees in the city or town in which the business is carried on. If the total value of the shares is greater than the total value of the property of the association on account of the expectation of future profits this excess escapes taxation under our statutes except so far as it is reached indirectly by the income tax.

5

A partnership continues to exist for the purposes of taxation after it has been dissolved until the affairs of the firm are wound up or until all the firm property has been disposed of;" but partners who have withdrawn from a firm are not personally liable for the tax assessed in the firm name although they have. not notified the assessors of their withdrawal. The status of a partner who has withdrawn from a firm and allowed his share to remain for a certain period is that of a creditor, unless it appears that it was the intent of the partner that the obligations of a partnership should continue." If a partnership is dissolved after the first day of April in a year by the withdrawal of some of the partners, such partners are equally responsible for taxes assessed during the year with those who continued the business.10

The statute has no application to a partnership which has no place of business in the commonwealth, and the property of such a partnership if within the commonwealth must be taxed in accordance with the other provisions of law.11

11

Difficult questions may arise when the same items of property

3 Little v. Cambridge, 9 Cush. 298 (1852); Cloutman v. Concord, 163 Mass. 444 (1895).

4 Hoadley v. Essex County Commissioners, 105 Mass. 519 (1870); Ricker v. American Loan & Trust Co., 140 Mass. 346 (1885); Williams v. Boston, 208 Mass. 497 (1911); Williams v. Milton, 215 Mass. 1 (1913); Foster v. Boston, 215 Mass. 31 (1913). See also infra pages 616, 618.

5 Hoadley v. Essex County Commissioners, 105 Mass. 519 (1870).

6 Oliver v. Lynn, 130 Mass. 143 (1881).

7 Washburn v. Walworth, 133 Mass. 499 (1882).

8 Williams v. Brookline, 194 Mass. 44 (1907).

9 Stearns v. Brookline, 219 Mass. 238 (1914).

10 Hurter v. Larrabee, 224 Mass. 218 (1916).

11 Bemis v. Aldermen of Boston, 14 Allen 366 (1867).