
    John D. Bates vs. The City of Boston.
    If the husband of a woman, for whom personal property is held in trust, is possessed of personal property for which he is liable to be taxed, and is improperly taxed for a larger amount than he otherwise would be, on account of such property in trust, his only remedy is by an application to the assessors for an abatement.
    The provision of the Bev. Sts. c. 7, § 10, cl. 5, that all personal property held m trust, the income of which is to be paid to any married woman residing within the state, shall be assessed to the husband of such married woman, in the town of which he is an inhabitant, applies to property in the hands of a receiver of the circuit court of the United States, appointed by that court to hold and invest the same, and to pay over the income thereof to such married woman, until the fur ther order of the court.
    This was an action of assumpsit, to recover the sum of $250.44, for taxes alleged to have been unlawfully assessed to the plaintiff, and paid by him under protest. The case was submitted to the court of common pleas upon an agreed statement of facts, as follows : —
    In April, 1827, Mary Gilman, wife of Robert H. Gilman, of New York, and daughter of William H. Boardman, of Boston, then lately deceased, joined with her husband in an assignment of all their right, title, and interest in the estate oí her father, to certain trustees, to be held and appropriated by them for the benefit of the creditors of the husband, with the exception of the sum of $50,000, which was reserved to be held and appropriated by the trustees for the benefit of the wife and her children.
    In 1831, Gilman having in the mean time deceased, and William H. Boardman, jr., having become sole trustee by assignment from the original trustees, the administrator of the estate of Boardman the elder refused to pay over the reserved sum of $50,000, to the trustee, without the direction of some competent tribunal in that behalf, on the ground, that it was doubtful whether the same belonged exclusively to the wife, or to her and her children, and whether the creditors of the husband had any interest therein; and thereupon a suit in equity was commenced by the wife, then residing in New York, in the circuit court of the United States for the district of Massachusetts, against the administrator and the trustee, in order to obtain the direction and order of the court, in respect to the payment and disposal of the trust fund.
    The case was heard at the October term, 1831, before Mr. Justice Story, by whom it was ordered, that the administrator should bring into court the said sum of $50,000, which should be thereupon paid and delivered to William H. Boardman, the trustee, who, with the consent of the complainant, was appointed to act as receiver of the court for the same; that the said Boardman should invest the said sum in his name as receiver, in trust, for the uses and further directions to be declared and given by the court; that the receiver should thereafter, yearly, or oftener, as the income should become payable, and until the further order of the court, pay over the income to the complainant, who should support and educate her children, who were minors, out of the same ; and that all questions, touching the respective rights of the complainant and her children in and to the said fund, and the construction of the assignment, should be reserved for the consideration of the court, until the said minors should become of age, or until further application should be made to the court by the parties interested.
    This order having been complied with by the administrator, and the money received and invested by the trustee, the latter has ever since paid over the income thereof to the complainant, who, in January, 1834, was married to the plaintiiF in this action.
    In 1832, the plaintiff was taxed for $10,000, personal estate. In 1834, he having entered into a copartnership under the name of Bates and company, the firm was taxed $47, for $10,000, personal estate; in 1835, the firm was taxed $48.50 for personal estate ; and afterwards in a constantly-increasing amount, until the year 1845, when the tax of the firm for personal estate was $399.
    In 1834, and from that time to 1845, inclusive, the plaintiff was taxed individually for $40,000, personal estate and income, and also for his real estate, for which taxes distinct bills from those against the firm were made out to the plaintiff and paid by him.
    Neither the plaintiff, nor the firm of Bates and company, have ever rendered to the assessors a statement of their property liable to taxation, or been called upon for any such statement; but have been regularly doomed, as above stated, and have paid all taxes assessed against them, respectively, without objection, excepting as hereinafter stated.
    Two of the present assessors were not assessors in 1835, when the plaintiff was taxed for $40,000, personal estate ; one of the present board was then in office, but does not distinctly recollect whether this assessment was solely on account of the fund above mentioned or not; but it is the impression of all the assessors, that it was so, and none of them know of any other personal estate of the plaintiff, not in the partnership, excepting furniture, &e.
    Before the formation of the partnership of Bates and company, in 1834, the plaintiff and his partner were each taxed separately; since that time they have been taxed as a firm. But neither of them had then or has since owned any personal estate, not included in the partnership stock, excepting nousehold furniture, horses and carriages, apparel and articles of the like description ; and each of them has and for several years has had such property.
    No separate tax for personal property has ever been assessed upon the plaintiff’s partner, since the formation of the partnership, in 1834, until the year 1846, when he was taxed for some shares of bank stock, which he held in trust; and no separate tax has been assessed upon the plaintiff, since 1834, except for the said sum of $40,000, personal estate, which was assessed to him immediately after and ever since his tnarriage.
    The plaintiff, on the 20th of April, 1845, gave the assessors notice in writing, that he was not liable to be taxed for the trust fund above mentioned of $40,000; but he was nevertheless assessed therefor for the year 1845, and a separate bill rendered. He was also assessed as one of the firm of Bates and company, for his poll and personal estate, and individually for his real estate, for which separate bills were made out and paid. But the plaintiff refused to pay the first-named tax, until a warrant was issued and served upon him, when he paid the same, under protest, and brought this action to recover back the amount.
    It is usual, but not universal, where persons residing in the city of Boston are partners, and taxed there, to tax the firm for the personal estates of all the partners, and not to tax them separately, unless for property held in trust.
    Upon the foregoing facts the court of common pleas, by agreement of parties, gave judgment pro formá for the plaintiff, and the defendants appealed to this court.
    
      C. G. Lor mg, for the plaintiff.
    
      P. W. Chandler, city solicitor, for the defendants.
   Shaw, C. J.

The court are of opinion, that whether the plaintiff has been rightfully taxed or not, in respect to the fund, held by Boardman, as receiver, under a decretal order of the circuit court, the income of which is payable annually to the plaintiff’s wife, he is not entitled to maintain this action.

The tax was assessed to the plaintiff personally. It is conceded, that he had personal property, liable to taxation, other than his partnership property; and for such property he was severally and personally liable to taxation. Partners are liable to be taxed jointly, in the partnership name, for all the personal property employed in their partnership business; but not for their separate property, and it would be irregular so to tax their separate property. It would have the effect to make each liable for the tax on the separate property of the other. Rev. Sts. c. 7, § 13. The plaintiff, therefore, was liable to be severally taxed for personal property; the whole tax was set to him, as for his own personal property ; it was therefore, if wrong, obviously a case of over-taxation, for which his only remedy was an appeal. Osborne v. Danvers, 6 Pick. 98; Preston v. Boston, 12 Pick. 7.

But not having given in a “ list ” of his estate, conformably to the same chapter (§ 10), the estimate of his property, made by the assessors (§ 24), is so far conclusive, that the tax-payer is precluded from applying to the assessors for an abatement, and also from appealing to the county commissioners (§ 40), and in this county to the mayor and aldermen, from the decision of the assessors. And there appears no ground for bring ing this case within the exception stated and acted on in the ease of Preston v. Boston, 12 Pick. 7, where the party was liable, as a non-resident, for real estate, but was in fact taxed for his poll and personal estate. Not being an inhabitant, the entire tax on his poll and personal property was an illegal tax, and not an over taxation, although as a non-resident proprietor, he was liable to be taxed for real estate in Boston. Here the plaintiff was an inhabitant of Boston, was liable for his poll and general personal property, the whole was taxed to him as his personal property, and it is a plain case of over-taxation.

But although this position is quite decisive, yet the facts of the case warrant us, we think, in looking at it in a point of view somewhat less technical, and less dependent on strict law.

It appears by the statement of the assessors, that their impression is, that the great increase in the personal tax to the plaintiff, after his marriage, was made with some regard to the trust fund in question; and they did not know of any other large amount of property, or any other property except furniture, carriages, and the like. It does not appear, that the assessors were informed of the precise amount or condition of this trust fund, but they probably did know, that the plaintiff had married a lady reputed to be an heiress of considerable property, by which his means, his income and ability, were largely increased.

In such a case, under their power of dooming or estimating arbitrarily, as they must do, in the absence of the list or authoritative statement, which the tax-payer is . notified to make, they would be justified in increasing his personal tax, until he should think fit to give in such statement. It would still be strictly his personal tax.

In any point of view, therefore, in which this case can be regarded, even if the tax was excessive, and if on the facts stated, had they been made known to the assessors, it would be irregular and wrong; still, it must be regarded as a mere case of over-taxation, for which the plaintiff has not put himself in the way to obtain redress; and this is decisive of the present action.

But the court are further of opinion, that the plaintiff was liable to be taxed in respect to this fund of $50,000. The statute (Rev. Sts. c. 7, § 10, cl. 5,) declares, that all personal property, held in trust by any executor, administrator or trustee, the income of which is to be paid to any married woman, or other person, shall be assessed to the husband of such married woman, or to such other person, &c. The term trustee is here used as a very general term, and includes any person who may be charged with the care and custody of a cash fund, the income of which is to be paid to a married woman. It has no reference to the mode in which such trustee is appointed, or to whom, or in what manner, he may be bound to account. It looks only to the fact of a fund held in trust, of which a married woman receives the income. It assumes, that although it may be payable to her, for her separate use, yet the husband, directly or indirectly, will have the benefit of it; and as it would be taxable if she was discovert and acting suo jure, the husband, as being by the common law liable for her debts, and the performance of her legal duties, is made liable to such tax.

We were pressed with the argument, and certainly it is entitled to great consideration, that the proposed construction would seem to authorize state officers to-lay their hands on a fund, in the custody and control and subject to the order of the circuit court of the United States, which would appear to be inadmissible. But the objection is rather seeming than real.

The assessment does not touch the fund, or control it; nor does it interfere with the trustee in the exercise of his proper duties ; nor call him, nor hold him, to any accountability. It affects only the income, after it has been paid by the trustee to the wife; and thus causes the duty of the husband, to pay the tax, to attach. It does not prevent the court, who constituted this fund by their decretal order, from controlling or changing it; it only decides, that whilst the decretal order stands in force, and whilst without any further act or order of the court, the income is paid annually to the wife, the husband must pay the tax due in respect to the income derived from that fund.

Nor is it any objection to this decision, that by the decree of the circuit court, the wife was charged with the support of her children out of such income. The income was payable to her, and it is within the letter and spirit of the statute. Before her intermarriage with the plaintiff, if the law stood then as it does now, she herself would have been liable to taxation, as for a fund held in trust of which she would in that case have received the income. After her intermarriage, the plaintiff became liable, under the other clause of the statute, for the same tax.  