Herrick v. City of Big Rapids

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.