6

5

G. L. c. 65, §§ 17, 18] gift made in the life of the decedent, or when payment of the tax is deferred until after the executor or administrator has gone out of office, or when the tax is collected by enforcing the statutory lien upon the property of the decedent. It is the executor or administrator who must pay the tax and the statutes furnish him ample means of raising money from the estate in whatever form it may be to satisfy the tax. If he is in doubt about the liability of the estate to taxation he may apply to the probate court for instructions; but if he turns over the property of the estate to the persons entitled without paying a tax which was then due he is personally liable for the tax. On the other hand the persons beneficially interested in the estate have no opportunity to contest with the commonwealth the liability of the estate to taxation; and if an executor or administrator pays a tax claimed by the commonwealth without an adjudication of court, he is personally liable to the heir or legatee if it is subsequently held that the tax was not legally due.1o

Legacy Charged on Real Estate

SECTION 18. If a legacy subject to said tax is charged upon or payable out of real estate, the heir or devisee, before paying said legacy, shall deduct said tax therefrom and pay it to the executor, administrator or trustee, and the tax shall remain a lien upon said real estate until it is paid. Payment thereof may be enforced by the executor, administrator or trustee in the same manner as the payment of the legacy itself could be enforced.

This section has received no alteration since it was first enacted except a slight modification of phraseology without change of meaning. Payment of a legacy charged upon or payable out of real estate may be enforced by action at law or bill in equity and the same remedies are open to the executor to enforce payment of the tax.

3

G. L. c. 65, §7, supra, page 627.

G. L. c. 65, §7, supra, page 627; §14, supra, page 640.

G. L. c. 65, §5, supra, page 626, and §31, infra, page 656.

G. L. c. 65, §§18, 21, infra, pages 645, 646.

G. L. c. 65, §30, infra, page 654.

G. L. c. 65, §30, infra, page 654.

'G. L. c. 65, §27, infra, page 651.

10 Essex v. Brooks, 164 Mass. 79 (1895).

[G. L. c. 65, §§ 19, 20

Provision for Payment of Tax Not Taxable

SECTION 19. When provision is made by any will or other instrument for payment of the legacy or succession tax upon any gift thereby made out of any property other than that so given, no tax shall be chargeable upon the sum to be applied in payment of such tax.

Prior to 1907 it was contended by the treasury department that a direction in a will to pay the tax on a legacy out of the estate amounted to an increase of the legacy by the amount of the tax, and it was the practice to assess a tax on a sum which after the tax was deducted would leave the amount of the legacy. This practice was overturned by the statute quoted above.

Repayment of Tax on Property Returned

SECTION 20. If a person who has paid to the estate of a deceased person, or to the commonwealth, any tax or part of a tax imposed on such estate by this chapter, afterward refunds to the estate any of the property upon which such tax was paid, or, in the case of a tax or part of a tax paid to the estate of the deceased, or paid to the commonwealth on account of such estate, if it is judicially determined that the whole or any part of such tax ought not to have been paid, such tax, or the due proportion thereof, shall be repaid to him by the executor, administrator or trustee.

This statute has not been materially modified since the year after its original enactment, when an error in wording which appeared in the statute in its original form was corrected. The statute contemplates the payment of a tax by the devisee, legatee or heir to the executor or administrator and applies to all taxes under the statute and not merely to those referred to in the three preceding sections. A person receiving property under the will or by intestate succession may be obliged to repay or return it to meet the demands of creditors of the estate, or of children of the testator unintentionally omitted in the case of a will, or for similar reasons, and if under such circumstances he has previously paid the tax he is of course entitled to have it returned to him.

G. L. c. 65, §§ 21, 22]

Sale of Real Estate for Payment of Tax

SECTION 21. The probate court may authorize executors, administrators and trustees to sell the real estate of a decedent for the payment of said tax in the same manner as it may authorize them to sell real estate for the payment of debts.

This essential provision for the enforcement of the inheritance tax law has remained in the statutes since the original enactment of the inheritance tax law in 1891 without modification, except a slight alteration in verbiage when the Revised Laws were enacted.

Under this section payment of the tax by the executor is not a condition precedent to the maintenance of the petition.1 Such a petition need not contain all the allegations required in the case of a petition to sell real estate for payment of debts.2 It is sufficient if it alleges the death of the decedent and the devise or descent of his real estate, contains a description of the real estate and further states that an inheritance tax is due thereon and that the respondent has taken possession of the real estate and refuses to pay the tax.3

Inventory and Appraisal

SECTION 22. A full and complete inventory and appraisal on oath of every estate shall be filed in the probate court or with the commissioner by the executor, administrator or trustee within three months after his appointment, and such inventory shall contain a complete list of all assets within the knowledge of said executor, administrator or trustee. If he neglects or refuses to file such an inventory and appraisal he shall be liable to a penalty of not more than one thousand dollars.

The original statute required the filing of inventories of only such estates as were in whole or in part subject to the tax; but it was the opinion of the attorney-general that if any part of the estate was subject to the tax the executor or administrator was bound to file an inventory of the whole,1 and that the treas

2

[G. L. c. 65, §§ 22, 23, 24 urer had no power to dispense with this requirement. The obligation of the register of probate to notify the tax commissioner was added in 1895, and in the direct inheritance tax act of 1907 the obligation of filing an inventory was imposed in the case of every estate. In 1909 further provision was made that the inventory should be "full and complete" and "contain a complete list of all assets within the knowledge of the said executor, administrator or trustee." The obligation to file an inventory exists in every case, whether there is any liability to taxation or not. The inventory affords the commissioner the opportunity to determine whether the estate is liable to the tax.

Non-Payment of Tax as Affecting Allowance of Probate

Accounts

SECTION 23. Except as provided in the following section, no final account of an executor, administrator or trustee shall be allowed by the probate court unless such account shows, and the judge of said court finds, that all taxes imposed by this chapter upon any property or interest therein belonging to the estate to be settled by said account and already payable have been paid, and that all taxes which may become due on said estate have been paid or settled as hereinbefore provided, or that the payment thereof to the commonwealth is secured by bond or deposit or by lien on real estate. The certificate of the commissioner and the receipt of the state treasurer for the amount of the tax therein certified shall be conclusive as to the payment of the tax, to the extent of said certification.

SECTION 24. The fact that an estate may later become subject to a tax imposed by this chapter, or that a tax hereby imposed is due and the amount thereof cannot be ascertained, shall not prevent the allowance of the final account of the executor, administrator or trustee thereof, if it appears that all taxes imposed by this chapter for which such estate is liable, which are already payable and the amount of which can be ascertained, have been paid, and that such property or interest therein has been transferred to a trustee appointed by a probate court of the commonwealth who has given bond, with sufficient sureties, in such a sum as to insure the payment of all taxes which are or may become due on said estate, unless such trustee is exempted from giving sureties by the probate court appointing him; and such 21 Opinions of Attorney General, 52.

G. L. c. 65, §§ 24, 25] trustee shall be liable for such taxes and the interest thereon in the same manner and to the same amount as if he had been the executor, administrator or trustee originally liable therefor, and the property received by him shall be subject to a lien for said taxes and interest until the same are paid.

Section twenty-three has remained in substantially the same form since its original enactment, except for the changes in phraseology necessary to conform to the other changes in the inheritance tax laws. Section twenty-four was first enacted in 1910. The allowance of a final account by the probate court and the issuance of a decree for distribution when the commonwealth is not a party is not a bar to the subsequent collection of a tax which is due by operation of the statutes; the allowance of an account under such circumstances is unauthorized by statute and if not absolutely void is at least not binding on the commonwealth.1 Conversely, the failure of an executor or administrator to file an account and have it allowed does not do away with the requirement resting on the commissioner to notify the executor or administrator of the amount of the tax, or estop the executor or administrator from contending that the tax is invalid.2

Determination of Value

SECTION 25. The value of the property upon which the tax is computed shall be determined by the commissioner and notified by him to the persons by whom the tax is payable, and such determination shall be final unless the value so determined shall be reduced by proceedings as herein provided. At any time within three months after such determination the probate court shall, on application of any party interested in the succession, or of the executor, administrator or trustee, appoint one or three disinterested appraisers, who, first being sworn, shall appraise such property at its actual market value as of the day of the death of the decedent, and shall make return thereof to said court. Such return, when accepted by said court, shall be final, except that any party aggrieved by such appraisal shall have an appeal upon matters of law. One half of the fees of said appraisers, as determined by the judge of said court, shall be paid by the commonwealth, and one half by the other parties to the proceeding.

1 Attorney General v. Stone, 209 Mass. 186 (1911); Attorney General v. Rafferty, 209 Mass. 321 (1911).

'Attorney General v. Roche, 219 Mass. 601 (1914).