Bourne v. City of Boston , 68 Mass. 494 ( 1854 )

Bigelow, J.

1. By Rev. Sts. c. 7, § 10, cls. 4, 5, all property belonging to minors under guardianship is to be assessed to the guardian in the town where he is an inhabitant; but all personal property held in trust must be assessed to the persons for whom it is so held, in the town of which they are inhabitants, if within this state. Under these provisions, the plaintiff was not legally taxable for the property held by him as trustee ; but he was taxable for the property of his ward in the city of Boston ; and therefore a portion of the tax, which, in this action, he seeks to recover back, was rightly assessed to him. This would seem to bring the case within the principle, now well settled by the authorities, that where a person is liable to taxation for personal and real estate in a city or town, his sole remedy, for an over taxation caused by an excessive valuation of his property, or by including in the assessment property of which he is not the owner, or for which he is not liable to taxation, is by an application to the assessors for an abatement. Howe v. Boston, 7 Cush. 273. Lincoln v. Worcester, 8 Cush. 55.

In the present case, there was no separate valuation or assessment of the several estates held by the plaintiff as guardian and as trustee. It was one entire, integral assessment to him. There is nothing from which it can be inferred that the assessors made any discrimination as to the property held by the plaintiff in these different capacities. On the contrary, the inference is that they included in one valuation and assessment the entire property of his ward and his cestuis que trust. Being legally liable for a portion of the tax thus assessed, the excess constitutes only an over valuation, for which he can have no remedy by an action at law.

2. The admission of certified copies of deeds in which the plaintiff was grantee, without previous notice to him to produce the original deeds, was contrary to the rule of law as it is now settled in Commonwealth v. Emery, ante, 80 ; and for this reason the case must be sent to a new trial. Verdict set aside.