Samuel Swett versus The City of Boston, 18 Pick. 123

Morton J. delivered the opinion of the Court. In the city tax for 1835, the plaintiff was assessed in the following form, “ on personal estate held in trust by William Gray's executors for the use of Mrs. Swett, $211 -50.” This tax the plaintiff was compelled to pay ; and if it was invalid, he is en titled to recover back the amount with interest. There appears to be no inequality in the form of the assessment, and the only question for our determination, is the liability of the plaintiff *.o be assessed for the “ principal sum ” mentioned.

The assessment is founded on the last tax act, St. 1831, § 2, which provides, “ that persons entitled to the income of any personal property held by others in trust for themselves, or for the particular and special use of their wives, shall be taxed for the capital or principal sum in the town where such persons reside,” To bring the plaintiff within this, provision, it must be made to appear that some “ capital ” was held in trust for him, the income of which belonged to himself or his wife. The rules of construction to be applied to acts of this description were laid down and explained in the case of Gray v.

City of Boston, 15 Pick. 376. The late William Gray, by his last will, gave to his daughter Lucia, (the plaintiff’s wife,) among other things, “ the interest of fifty thousand dollars, from the time of my decease, during her natural life, and at her decease the principal to be equally divided among her children.” What is the true construction of this clause ? Did the testator intend to create a trust fund, the income of which belonged to the plaintiff and his wife, and the principal of which vested in their children, to be paid to them on the death of their mother ?

If so, then, should the fund be lost by misfortune and without the fault of the trustee, the one would lose the income and the other the capital. We think the meaning of the testator is very clear, and that no intention to place this sum in trust for his daughter and her children is evinced in the will. If he had intended to create a trust fund, he would have used language clearly expressive of that intention, and not left it to doubtful construction and inference. This he did in the next clause, in a contingent provision for either of his sons who might become unfortunate after his death.

We are of opinion, that in providing for this daughter the testator intended to give her a legacy, consisting of an annual sum during her life, and to give to her children a legacy of fifty thousand dollars, payable on the death of their mother, and that these bequests were absolute and not depending on any contingency, and were to be paid by his executors out of his estate. If the testator had directed his executors to pay to Mrs.

Swett three thousand dollars, or any other specific sum, annually, and fifty thousand dollars to her children at her decease, there could have been no question as to the construction of the bequest. It would be perfectly clear that no trust was intended, and that neither the amount of the legacy, nor its certainty, would depend on the investment or the existence of any particular fund. We think.this case is exactly similar, or rather the same thing.

The interest of a particular sum is named as the measure of the annuity, and f ie bequest is as specific as if an exact sum had been specified, and the legacy no more depends upon the actual income of a particular fund, than if no definite sum had been named. What the precise amount of the annuity may be, whether it is fixed or liable to fluctuate, should the legal rate of interest be changed, are questions which we have no occasion now, and probably never shall have, to decide. The statute requires that the tax be imposed upon the “ capital or principal sum,” and not upon any annual or other income.

Now we think here was no “ capital or principal sum,” owned legally or equitably, or held in trust, or otherwise, for the plaintiff or his wife. The testator imposed upon his executors, an obligation to pay to Mrs. Swett, out of his estate, an annuity, during her life, and to pay a definite sum to her children. The performance of this duty they have secured by their official bond to the judge of probate. It is scarcely necessary to remark, that the investment of fifty thousand dollars in the Hospital Life Insurance Company, can have no influence upon the plaintiff’s liability to taxation. It was

an act of the executors, not done in pursuance of any direction of the will, nor assented to by the plaintiff, and can have no effect upon the rights of himself, his wife or his children. It has been strenuously contended by the defendant’s counsel, that unless the plaintiff is liable for this tax, here will be a large amount of property not subject to taxation. And as it is the intention of the legislature to tax all property, we have been urged to give this tax act such a construction as will include this particular fund.

There is no doubt that the intention of the legislature is to tax all property, not exempted, equitably ; and that the tax act and other statutes regulating the assessment of taxes, are made with this object in view. And when a description of property is in danger of escaping taxation, these circumstances ought to have weight in giving a construction to the law. But they do not authorize us to give a forced and unnatural meaning to the language of the statute.

With the greatest vigilance which can be exercised, some property will find crevices in the law through which it will escape the grasp of the tax maker and the tax collector. But when discovered, it is the province of the legislature, an 1 not the court, to stop them. This argument is founded upon the assumption, that here is a distinct sum set apart for a specific purpose and which can be taxed to no person except the plaintiff. But we think the assumption is not supported ; and that this fund is as much liable to taxation as any other property in the hands of the ex-•ecu'.ors.

They are liable to be taxed for all the real and personal estate which they hold ; and all money which they have at interest more than they pay interest for. They owe to the children of Mrs. Swett fifty thousand dollars, payable at her death. An amount equal to the interest on the same sums they are-bound to pay to her during her life. If they have money at' interest, this sum should be deducted from the amount, and a tax assessed upon the balance.

But if they have invested their money in stocks or other property liable to taxation, then, like other men in debt, they may be taxed for property not clearly their own. In either view, this fund will not escape taxation. The plaintiff is not taxed for this annuity as “ income.” And manifestly it cannot, according to the statute, be brought into the assessment under that denomination.

The statute limits the income which is taxed, to such as is derived “from any profession, handicrafts, trade or employment, organized by trading at sea or on land.” If the legislature deem an annuity like this, a proper subject of taxation, they will so amend the law as to embrace it. But by the present statute, it is not liable to be taxed to the plaintiff in any form. The defendants defaulted, and judgment for the amount of the tax, with interest.