
    Addie Lee Herrick v. The City of Big Rapids.
    
      Assessment of legacies.
    
    1. A legatee cannot, in Michigan, be assessed for a legacy not yet due and still in the hands of executors; all undistributed estate must be assessed to the executor. Act 9 of 1889, sec. 11.
    9. When the assessment of a particular class of property is clearly identified and separable, the question of the liability of such property to the assessment can be raised in an action to recover back the amount of the tax after paying it under protest.
    Error to Mecosta. (Fuller, J.)
    April 23.
    April 30.
    Assumpsit. Defendant brings error.
    Affirmed.
    
      Frederick A. Ma/nn and Frank JDumon for appellant.
    
      Roger W. Butterfield for appellee.
    Property in the hands-of a trustee under a will should be assessed to him ; Cooley on Taxation 271; State v. Matthews 10 Ohio St. 431; when the property comes into the possession of the heir or legatee, it must be taxed to her in the place where she resides: Cornwall v. Todd 38 Conn. 443; personalty is assessed to the executor or administrator until distribution : Hardy v. Garmouth 6 Allen 277; Hathaway v. Fish 13 Allen 267; a municipal tax,-illegally collected, can be recovered : Preston v. Boston 12 Pick. 7; Hagenbuch v. Howard 34 Mich. 1; Grand Rapids v. Blakely 40 Mich. 367; Byles v. Golden Township 52 Mich. 612; Louden v. Fast Saginaw 41 Mich. 25; Wattles v. Lapeer 40 Mich. 626; Boston and Sandwich 
      
      Glass Co. v. Boston 4 Met. 181; Atwell v. Zeluff 26 Mich. 118; Erskine v. Van Arsdale 15 Wall. 75; Nickodemus v. East Saginaw 25 Mich. 459; First National Bank of Sturgis v. Watkins 21 Mich. 490.
   Campbell, J.

The only question which is presented by the record in this case is. whether it is competent to assess a legatee for a legacy not yet due, and still in the hands of executors. As this was the only thing assessed, we think there is no legal objection to reaching the rights of the parties as-asserted by the payment under protest. It has been decided in several cases that the liability to taxation of certain classes of property, when clearly identified and separable, is examinable. Under our statutes the property of a testate estate is required to be assessed at the last residence of the decedent, to-the executors. The decedent resided in the same ward where .this assessment was made, and his estate was assessed there. The statute is express that the whole undistributed estate shall be assessed to the executors. Section 11. [1 How. Stat. p. 1267.] Under such a distinct and positive provision a legatee could not be required to assume that any part of the estate would be assessed to her, when she could not realize it, or obtain control over it.

We think the conclusions of the court below were correct,, and that the judgment should be affirmed.

The other Justices concurred.  