G. L. c. 65, §§ 3, 4] testamentary disposition. Even if a gift was made within six months of the death of the donor, the presumption that it was made in contemplation of death may be rebutted by competent evidence.

Shares in Multi-State Corporations

SECTION 4. When the personal estate passing under section one from any person not an inhabitant of the commonwealth consists in whole or in part of shares in any railroad or street railway company or telegraph or telephone company incorporated under the laws of this commonwealth and also of some other state or country, so much only of each share as is proportional to the part of such company's line lying within this commonwealth shall be considered as property of such person within the jurisdiction of the commonwealth for the purposes of this chapter.

Certain important public service corporations having lines. in more than one state are incorporated under the laws of every state in which their lines are located although they have but a single issue of capital stock. The subjection of shares in such corporations to the inheritance tax has received attention from both the legislature and the courts. Under the general provisions of the original statute it was held that shares in a railroad corporation having a charter both from Massachusetts and from another state and having track in both states, owned by a non-resident decedent and kept outside this commonwealth at the time of his death, were subject to the tax. So long as the railroad holds a Massachusetts charter, it was said, Massachusetts can prescribe the payment of a tax as a condition of the right to succeed to stock issued under that charter. It was later held that the value for the purpose of taxation should under such circumstances be limited to the value of the property of the corporation within the commonwealth. A different rule, it was said, might be constitutional but it would be unfair and the legislature cannot be assumed to have intended it.2 Just prior to this decision but after the case arose a statute was enacted providing for an apportionment by mileage in case of shares in a multi-state corporation held by a non-resident de

[G. L. c. 65, §§ 4, 5 cedent, which was repealed so far as it applied to the estates of persons dying after May 29, 1912,3 when the state abandoned the policy of taxing the personal property of non-resident decedents. When the taxation of the property of non-resident decedents was resumed, the statute providing for the apportionment of the tax on stock in multi-state corporations was re-enacted.*

In 1911 provision was made for the exemption of a part of the value of stock in a multi-state corporation owned by a resident decedent, apportioned according to mileage; but when the state resumed the policy of taxing all the personal property of resident decedents, wherever located, this provision was repealed.

Reciprocal Exemption of Non-Resident Decedents

SECTION 5. Property of a non-resident decedent which is within the jurisdiction of the commonwealth at the time of his death, if subject to a tax of like character with that imposed by this chapter by the law of the state or country of his residence, shall be subject only to such part of the tax hereby imposed as may be in excess of the tax imposed by the laws of such other state or country, provided that a like exemption is made by the laws of such other state or country in favor of estates of residents of this commonwealth; but no such exemption shall be allowed until the tax provided for by the law of such other state or country shall be actually paid, guaranteed, or secured in accordance with law.

In 1907 a statute in substance the same as the foregoing was enacted, and this statute remained in force until 1912 when the state renounced all taxation of the estates of non-resident decedents. In 1920 the state resumed the taxation of the property of non-resident decedents, and the statute establishing reciprocal exemptions was revived.3

3

St. 1907, c. 563, §2, codified as St. 1909, c. 490, IV, §2 and repealed by St. 1912, c. 678, §2.

*St. 1920, c. 396, § 2, applicable to persons dying after May 4, 1920.

5

1

St. 1911, c. 502, §1.

St. 1916, c. 268, §3, applicable to persons dying after May 26, 1916.

1 St. 1907, c. 563, §3 (last sentence).

* St. 1912, c. 678, §2 (with respect to the estates of persons dying after

May 29, 1912).

3

* St. 1920, c. 397, §3 (with respect to the estate of persons dying after May 4, 1920).

G. L. c. 65, §§ 5-7]

While the 1907 statute was in force it was held that a "like exemption" was made by the laws of another state with respect to the taxation of intangible personal property within the meaning of the statute, when the laws of such state exempted from the inheritance tax all intangible personal property of nonresidents, independently of any correlative concession by other states; and the property of a resident of another state is not subject to taxation here, if similar property of a decedent resident of this state, within the jurisdiction of such other state, would not be taxed by such other state.*

Persons Liable for the Tax

SECTION 6. Administrators, executors and trustees, grantees or donees under conveyances or gifts made during the life of the grantor or donor, and persons to whom beneficial interests shall accrue by survivorship, shall be liable for the taxes imposed by this chapter, with interest, until the same have been paid.

Taxes imposed upon the passing of property by will or by the laws regulating intestate succession, though imposed on the particular legacies or distributive shares, are payable by the executor, administrator or trustee, and not by the legatee or distributee, except in the case of the tax on a future interest coming into possession when there is no executor, administrator or trustee, in which case the tax is payable by the person receiving the interest. On the other hand, taxes imposed upon the passing of property by gift, whether intended to take effect in possession or enjoyment after the death of the donor, or made in contemplation of death, and by survivorship, are payable by the donee or the survivor, since such property would not constitute assets of the estate of the decedent or come into the possession of his executor or administrator.

Time of Payment

SECTION 7. Taxes imposed by this chapter upon property or interests therein, passing by will or by laws regulating intestate succession, shall be payable to the state treasurer by the executors, administrators or trustees at the expiration of one year from the date of

Bliss v. Bliss, 221 Mass. 201, 209 (1915); Borden v. Treasurer & Receiver General, 221 Mass. 212 (1915).

[G. L. c. 65, §§ 7,8 the giving of bond by the executors, administrators or trustees first appointed; except that in all cases where there shall be a devise, descent or bequest to take effect in possession or come into actual enjoyment after the expiration of one or more life estates or of a term of years, the taxes thereon shall be payable by the executors, administrators or trustees in office when such right of possession accrues, or, if there is no such executor, administrator or trustee, by the persons so entitled thereto, at the expiration of one year from the date when the right of possession accrues to the persons so entitled.

If the probate court, acting under section thirteen of chapter one hundred and ninety-seven, has ordered the executor or administrator to retain funds to satisfy a claim of a creditor, the payment of the tax may be suspended by the court to await the disposition of such claim.

Taxes imposed by this chapter upon property or interests therein, passing by deed, grant or gift to take effect in possession or enjoyment after the death of the grantor or donor, or upon beneficial interests arising or accruing by survivorship in any form of joint ownership, shall be payable by the grantee, donee or survivor at the expiration of one year from the date when his right of possession or enjoyment accrues. Taxes imposed by this chapter upon property or interests therein passing by deed, grant or gift made in contemplation of death shall be payable by the grantee or donee at the expiration of one year after the death of the grantor or donor.

In case of any deed, grant or gift of a life interest or term of years, the donee for life or years shall pay a tax only on the value of his interest, and the donee of the future interest shall pay his tax when his right of possession or enjoyment accrues.

SECTION 8. If a foreign executor, administrator or trustee assigns or transfers any stock in any national bank situated in this commonwealth, or in any corporation organized under the laws of this commonwealth, owned by a deceased non-resident at the date of his death and liable to a tax under this chapter, the tax shall be paid to the state treasurer at the time of such assignment or transfer, and if it is not paid when due, such executor, administrator or trustee shall be personally liable therefor until it is paid. A bank situated in this commonwealth or a corporation organized under the laws of this commonwealth which shall record a transfer of any share of its stock made by a foreign executor, administrator or trustee, or issue a new certificate for a share of its stock at the instance of a foreign executor,

G. L. c. 65, §8]

administrator or trustee, before all taxes imposed thereon by this chapter have been paid, shall be liable for such tax in an action of contract brought by the state treasurer.

Under the original statute of 1891 it was provided that when there was a devise for life or years that was not taxable by reason of the relationship of the devisee to the testator, and a remainder to a collateral heir or a stranger that was taxable, the value of the life estate should be appraised and deducted from the total value, and the remainder should be taxed in the established manner;' and it was further provided that all taxes imposed by the act should be paid by the executors, administrators or trustees at the expiration of two years from the date of their giving bond2 except when the probate court had ordered the executor or administrator to retain funds to satisfy the claim of a creditor whose right of action had not accrued, or when the probate court ordered the time of payment extended. These statutes remained unchanged until 1902, except for the striking out in 1895 of a clause permitting payment to be made to the county treasurer instead of to the treasurer of the commonwealth. Under these statutes it was held that when property was left in trust to pay the income to a person so related to the testator that the bequest was not taxable and on his death to pay the principal to one not exempt, the tax on the remainder must be paid out of the principal although the result was to diminish the income of the exempt beneficiary; and that in the absence of specific authority in the will this loss would not be made good to him out of the estate. It was further held that when an annuity was devised to collateral kindred, the whole tax thereon should be paid out of the annuity as soon as it became payable, even although the entire first payment of the annuity was thereby exhausted. When a life estate of the exempt class was terminated before the payment of the tax so that its real value could be actually determined, nevertheless

7

'St. 1891, c. 425, §2.

St. 1891, c. 425, §4.

St. 1891, c. 425, §18.

St. 1895, c. 430, §1.

5

Minot v. Winthrop, 162 Mass. 113 (1894).

Minot v. Winthrop, 162 Mass. 113 (1894). Since 1912, the statutes have specifically provided that the tax should be paid out of capital and not income. St. 1912, c. 678, §1, now G. L. c. 65, §12, infra, page 635.