# Babson v. Babson > Massachusetts Supreme Judicial Court · December 28, 1977 · 374 Mass. 96 URL: https://www.frixlaw.com/law-library/cases/9521097 ## Case - **Full name:** Donald P. Babson & Others, Executors, vs. Susan A. Babson & Others - **Court:** Massachusetts Supreme Judicial Court - **Decided:** December 28, 1977 - **Citations:** 374 Mass. 96; 371 N.E.2d 430; 41 A.F.T.R.2d (RIA) 1449; 1977 Mass. LEXIS 1224 - **Precedential status:** Published - **Opinion:** Dissent by Quirico - **Judges:** Hennessey, Quirico, Braucher, Kaplan, Wilkins - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9521097 ## Opinion text Quirico, J. (dissenting). This is an action brought under G. L. c. 231A by the executors of the will of Paul T. Babson against (a) all those beneficiaries or contingent beneficiaries under the will, or the guardians or trustees for such beneficiaries, who will be affected by the amount of the Federal estate tax payable by the executors, (b) the Attorney General of the Commonwealth, and (c) the Commissioner of the Internal Revenue Service (Commissioner). Although each defendant was served with process, none has filed an appearance or answer. The plaintiffs allege in their complaint that “a present controversy exists between [them and] the Internal Revenue Service of the United States” over the amount of the Federal estate taxes, and they request a declaratory judgment on matters which may affect the amount of such taxes. The court has ordered the entry of the judgment requested by the plaintiffs. There is no allegation of any controversy between the plaintiffs and the defendant beneficiaries. It is reasonable to assume that in the circumstances of this case the plaintiffs and these defendants have the common interest and goal of paying the lowest possible Federal estate tax. Nor is there an allegation of any controversy between the plaintiffs and the Attorney General of the Commonwealth. The plaintiffs assert that all the Massachusetts taxes attributable to the marital deduction and to the present and future *107 interests passing in the estate have been paid in full from the estate’s residue. The Attorney General is apparently satisfied that such is the fact and has therefore filed no answer or appearance. The plaintiffs do expressly allege that they have a controversy with the Commissioner. However, notwithstanding the fact that he was served with process, the courts of this Commonwealth did not acquire jurisdiction over him. He has not voluntarily appeared or otherwise submitted to the jurisdiction of the Commonwealth, and he has correctly asserted that by virtue of the doctrine of sovereign immunity he is immune from suit in our courts. See United States v. Sherwood, 312 U.S. 584, 586-587 (1941). He is therefore not a party to this proceeding. The net result is that the only “actual controversy” that exists is one between the Commissioner, on the one side, and the plaintiffs and the defendants who are beneficiaries under the Babson will, on the other. The Commissioner is thus a necessary and indispensable party to any adjudication of that controversy, but it is impossible for the courts of the Commonwealth to exercise jurisdiction over him, in his capacity as a Federal official, without his consent. The power of the courts of this Commonwealth to render a declaratory judgment is limited by G. L. c. 231 A, § 1, inserted by St. 1945, c. 582, § 1, to a “case in which an actual controversy has arisen and is specifically set forth in the pleadings.” Boston v. Massachusetts Port Auth., 364 Mass. 639 , 645 n.8 (1974). Povey v. School Comm, of Medford, 333 Mass. 70, 71-72 (1955). Cf. Commonwealth v. Massachusetts Elec. Co., 347 Mass. 780 (1964); Harvey Payne, Inc. v. Slate Co., 342 Mass. 368, 370 (1961). This is not such a case. It is not enough that the complaint relates to a will (G. L. c. 231 A, § 2); it must further specifically set forth an “actual controversy” between the parties in relation thereto. The same statutes certainly presuppose that the controversy to be adjudicated is one between the parties to the action. The provisions should not be read as indicating a legislative intent that a plaintiff be permitted to invoke the power of a *108 court to adjudicate a controversy between himself and a stranger to the action. By entertaining an action of this type the court is rendering a judgment without the benefit of briefs and arguments which we could require if the actual adversaries to the controversy were before us as parties to the proceeding. Instead the court now has only the brief and argument of the plaintiffs. I cannot escape the impression that in this type of a case, although the plaintiffs attempt to name the beneficiaries as adversaries and, therefore, as nominal defendants, the plaintiffs and the beneficiaries are in fact engaged in a common effort against the absent Commissioner and are all in accord as to the answer which they believe the court should give. I do not question their right to join or acquiesce in an effort to advance their common interest in minimizing the Federal estate taxes in question. However, I do not agree that the courts of this Commonwealth are the proper forum in which to obtain a declaratory judgment when the only “actual controversy” that exists is between them, or some of them, and the absent Commissioner. I recognize that there are precedents in our decisions for the granting of declaratory relief in cases involving facts substantially similar to those now before us. See, e.g., Perskyv. Hutner, 369 Mass. 7 (1975). The precedents may have resulted in part from the very fact for which I would not grant relief in the present case, that is, the absence of any real adversary in the alleged controversy. I think that the court here should note the absence of such an adversary and the resulting absence of any brief or argument in opposition to the relief requested by and granted to the plaintiffs. I believe that this court should no longer entertain such cases or grant relief in such situations. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9521097. Public record. Not legal advice.