This is an action of assumpsit brought by Austin Smith, as special administrator of the goods and estate of Oliver Smith, deceased. The suit was commenced in May, 1847, after the will of Oliver Smith, by which the plaintiff" was appointed executor, had been offered for probate, and previous to August, 1847, when it was finally proved and allowed.

The action is brought to recover the dividends on certain shares inr the capital stock of the defendants which were declared in April, 1847. The actual sum demanded in this suit is a small one, being only one semiannual dividend; but the question involves the title to the shares themselves. These shares had been sold under the circumstances stated in the bill of exceptions, at some time previous to the declaration of this dividend; and certificates had been issued to the purchasers, to whom the dividend was paid; and the first question is, whether the sales were rightful, and transferred *10the property in such shares to the purchasers. If they did, of course, the plaintiff" is not entitled to recover; for if he were, it would follow, that the defendants might be legally liable to two different parties, at the same time, for dividends on the same shares.

The defendants contend, that they have no means of knowing whether the tax was rightly assessed or not, and are not bound to litigate that question. On the contrary, we are pressed with the consideration, that, unless an owner can hold the bank responsible, a tax may be assessed upon any man, without right, and he be divested of his property by thfe doings of an executive officer, without notice.

The question is certainly not without difficulty; but the difficulty is rather theoretic than practical; inasmuch as there must be a demand made for the tax, which will put the owner on his guard, and perhaps enable him to take measures for his relief.

In the present case, the taxes were assessed in May, 1846, to “ Austin Smith, who is named as executor of an instrument, purporting to be the last will and testament of Oliver Smith, late of Hatfield, deceased, for the estate of the said deceased, in the hands and possession of the said Austin Smith.” It would appear, prima facie, that this was a good assessment to Smith, as executor, and the warrant followed the assessment.

By the statute of 1846, c. 195, the collector has the same authority to take bank shares, as he has to take goods, for the payment of taxes, and to dispose of and sell the former, in the same manner, as by law the latter are directed to be sold. The purchaser is then entitled to a certificate in the same manner as when a sale of bank shares is made on execution. It appears, by the return of the officer, that he gave due notice to the cashier of his having seized the shares after an ineffectual demand on the plaintiff" for the tax; that he left a certified copy of his warrant with the cashier; and that he advertised and sold the shares, and again left a certificate of that fact, with an attested copy of his warrant and return, with the officer whose duty it was to record the *11transfer of shares, namely, the cashier. The statute also provides, (hat upon such proceedings being had, and such certificates left, the purchaser shall be entitled to a certificate of the shares purchased in due and proper form. Such certificates were given, and the court are of opinion, that the officer of the bank having complied with the directions of the law, the defendants, the bank, in order to defend themselves against this claim, are not bound to go further and show that the tax in .question was rightly assessed to the plaintiff as such executor.

The collector had an apparently good warrant of distress. It emanated from a board of assessors having lawful authority to issue it, that is, having jurisdiction of the subject matter, and prima facie a lawful authority; and there was nothing on the face of the documents to indicate any want of jurisdiction, or any error or defect in the proceedings. It seems, therefore, to this court, that this was a case, in which, if the cashier of the defendants was not bound to issue the new certificates to purchasers, he was at least authorized to do so; and, therefore, that the defendants were not liable to pay the dividends to the plaintiff, and that this action against the bank cannot be maintained.

The other question, whether this tax was rightly assessed by the assessors of Hatfield, was argued much at large; and the court have been somewhat urgently pressed to express an opinion upon it, though not, perhaps, in strictness, necessary to the decision of the present case. The question is one of great doubt and difficulty; and one which affects the interest of parties not in form before the court; though, it is probable, that they are in fact represented. It was stated in the argument, that the defendants in this action had been indemnified; though it was not stated by what party, nor does any fact of that sort appear in the record. Under these circumstances, I am instructed to express the opinion of a majority of the court, (one member not sitting in the cause,) an opinion formed not without some hesitation, that, under the peculiar circumstances of the present case, the tax was rightly assessed to the present plaintiff, as the executor of Oliver Smith’s will.

*12It may be well admitted, that the liability of property to taxation in this commonwealth depends upon the provisions of statutes ; but the statutes upon this subject, like all others, must be construed with a reference to the reasons and principles of the common law, and with a just regard to the subject matter to which they apply.

The general policy of the law is, that all property, not specially exempted, shall be subject to taxation. Rev. Sts. c. 7, § 2. And it is equally clear, that property of deceased persons, whilst in the process of administration, and in the hands of executors and administrators, is not thus exempted. Rev. Sts. c. 7, §§ 5 and 10, cl. 7. It is no doubt true, in this as in many other cases of statute provisions, that the legislature had in view the more usual and common case, of estates of deceased persons in the hands of executors and administrators, where administration has been actually granted, or the will admitted to probate, and letters testamentary issued thereon. But, without expressing any opinion, in regard to letters of administration, where the administrator derives his authority from the letter of administration, neither the letter nor the reason of the law applies to executors, who derive their authority from the will, and where probate is necessary only to give authenticity to the will. Property of the testator is in the legal custody of the executor before probate, and he may exercise many of the powers of an owner over it. Property so situated may be the subject of larceny. Even where there is no will, the property of a deceased person is not derelict; but is regarded in law as the property of the administrator subsequently appointed, by relation from the time of the decease, so that taking it by any one, animo fwrandi, is larceny. Wonson v. Sayward, 13 Pick. 402.

It is urged, that the executor could not give in a list, See. A list is not necessary to the validity of the tax; but we cannot perceive why the executor could not give in a list. He had the actual and legal custody of the property, and the securities and evidence of property.

But without laying down any rules of more general application, we confine our opinion to the circumstances of the *13present case, which are certainly very peculiar. The testator died in December, 1845. The present plaintiff, Austin Smith, was named sole executor and trustee. The will was offered for probate, prior to the assessment of the tax, by the executor, who thereby authoritatively expressed his assent to the will, confirmed by his subsequent appointment. Before any step was taken towards laying or collecting the tax, the executor was appointed special administrator. If he was at that time vested with the power of paying, and whether or not a payment at that stage would have been regarded as the payment of a preferred debt, having a legal priority, or as an incidental expense, it was in the power of such special administrator to take all needful measures to guard and protect the estate from unjust claims. If the estate was liable, then it was a necessary expense, which he might pay and charge as such ; if it was not liable, he might protest against the levy, until the will should be proved. If upon protest and notice to the collector, to the assessors, and to the town for whose benefit the tax was assessed, the collector had persisted in making a distress before the will could be proved, and the estate regularly placed under the administration of an executor or administrator, and such distress were likely to be attended with a great sacrifice of property by a sale at an under value, we are inclined to the opinion, that the special administrator might have paid the tax under protest, as a necessary incidental expense for the preservation of the property, to be recovered back afterwards of any party liable, in case the tax was not rightfully assessed.

But, whether this were so or not, it appears, in the present case, that when the tax was assessed, the plaintiff was named executor and had offered the will for probate; that before it was levied he was appointed special administrator; and that subsequently the will was admitted to probate. The plaintiff was then confirmed as executor, and obtained letters testamentary; and whatever may have been the extent and limits of his power before probate, this act relates back and proves that the property was in him from the time of the decease of the testator; so that in May, 1846, the *14property was in his hands as executor, and not distributed, and was consequently liable to be assessed in the manner in which it was assessed to Austin Smith as executor. It was personal property of a deceased person in the hands of an executor and not distributed, and was assessed to the executor, in the town where the deceased last dwelt; and it was within the letter, and, in our opinion, within the meaning and true construction of the statute. Rev. Sts. c. 7, § 10, cl. 7.

This case comes to this court upon exceptions from the court of common pleas, where, under the direction of the court, a verdict was taken for the plaintiff. The effect of our view of the law is to sustain the exceptions, and to set aside the verdict. But as the opinion goes to the whole merits of the case, and shows that the plaintiff cannot recover, I suppose it is proper for the plaintiff to consent to a nonsuit. But, if otherwise, the entry here must be, that the verdict be set aside, and a new trial had in this court.