Bucklin v. National Shawmut Bank of Boston

• Decision Date: 05 February 1969
• Citation: 355 Mass. 338,244 N.E.2d 726
• Parties: Charles M. BUCKLIN et al., Executors v. The NATIONAL SHAWMUT BANK OF BOSTON, Executor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 726

244 N.E.2d 726

355 Mass. 338

Charles M. BUCKLIN et al., Executors v.The NATIONAL SHAWMUT BANK OF BOSTON, Executor.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 10, 1969.

Decided Feb. 5, 1969.

Daniel F. Featherston, Jr., Boston, for plaintiffs.

Peter S. Terris, Boston (Robert I. Hunneman, Boston, with him) for defendant.

Before SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

SPALDING, Justice.

Following the sustaining of a demurrer to their original bill, the plaintiffs filed an amended bill to which the defendant also demurred.The pertinent allegations of the amended bill are these.During the 1930's Helen C. Bucklin made a loan of $27,802.47 to her husband, Walter S. Bucklin, from her separate estate.The loan was for the purpose of improving real estate owned by the husband.The husband promised to repay the loan and 'until such repayment'he intended to 'hold such moneys in trust' for his wife's use.

In the financial statements of the husband and wife prepared by an accountant for every year subsequent to the loan, it 'was carried as a specified real money obligation' owed by the husband to the wife.The husband repaid part of the loan, so that at the time of his death he owed his wife's estate $21,744.39.The defendant bank, which is executor of the husband's estate, during the year following his death recognized 'the said debt' as a valid obligation, and represented that it would be duly paid, and the plaintiffs(executors of the wife's estate), relying on these representations, did not file a claim with respect to the debt against the husband's estate.

The attorneys who then represented the plaintiffs knew of the debt, but 'for reasons unknown to the plaintiffs' neither filed a claim for its payment nor 'informed the plaintiffs of any need to do so.'Subsequently the attorneys informed the plaintiffs that in their opinion the debt was not 'legally collectable.'Shortly after one year had elapsed from the time the defendant qualified as executor, the defendant for the first time informed the plaintiffs that in the opinion of its attorneys the debt was 'not legally enforceable.'Thereafter the defendant, although recognizing 'a real debt' owed by the husband to the wife, determined that it could not pay it.

Having been advised that 'procedures existed to accomplish * * * (the debt's) collection'the plaintiffs bring this bill under G.L. c. 197, § 10, asserting that justice and equity require that they be permitted to prosecute a late claim, and that in failing to prosecute their claim seasonably they were not 'chargeable with culpable neglect.'They asked that a decree be entered ordering payment for the amount of the claim.

An interlocutory decree sustaining the demurrer and a final decree dismissing the bill were entered.From both decrees the plaintiffs appealed.Among the grounds assigned in the demurrer are that the bill does not state a case for relief and is grounded on a contract between husband and wife, which by reason of G.L. c. 209, § 2, was invalid.Since we are of opinion that the demurrer was rightly sustained on these grounds, we need not consider the others.

The defendant's contention that the contract was invalid is based on G.L. c. 209, § 2, which, at the time the loan was made, provided that a wife 'shall not be authorized * * * to make contracts with her husband.'Despite this provision, the plaintiffs advance several grounds for treating the contract as valid.

General Laws c. 209, § 2, was amended by St.1963, c. 765, § 1, so as to authorize contracts between husband and wife.This amendment became effective shortly before the plaintiffs' testatrix died in 1964.The plaintiffs contend that the financial statement indicating a debt of $21,744.39 as of the end of 1964 and the defendant's recognition of its existence constitute an account stated which is a new cause of action enforceable under this amendment.

'An 'account stated' is an acknowledgment of the existing condition of liability between the parties.'Chace v. Trafford, 116 Mass. 529, 532.We assume without deciding that the bill sufficiently alleges facts indicating an acknowledgment by the plaintiffs and either the husband or his executor.Nevertheless, the facts alleged are not sufficient to establish an account stated, because there was no 'existing condition of liability' to be acknowledged.An account stated 'cannot be made the instrument to create a liability where none before existed, but only determines the amount of a debt where liability exists.'Chase v. Chase, 191 Mass. 556, 562, 78 N.E. 115.Prior to the 1963amendment the husband was not liable to his wife for the 'debt.'Nor was he liable even after the amendment was adopted, since there is no indication--and the plaintiffs do not so argue--that it was intended to affect pree xisting contracts.SeeHanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3--5, 107 N.E. 426;Greenaway's Case, 319 Mass. 121, 123, 65 N.E.2d 16.

The plaintiffs next contend that the contract was ratified after the amendment removed the disability of coverture.A written contract made by a minor, although voidable, may be ratified after he becomes of age.McDonald v. Sargent, 171 Mass. 492, 493, 51 N.E. 17.Similarly, the deed of an insane person is voidable, but it may be confirmed or ratified by the person when of sound mind or by his heirs, devisees, or legal guardian.Hermanson v. Seppala, 272 Mass. 197, 172 N.E. 87.But this is not a case where only one of the parties is under a disability to contract.Rather it is a situation where neither the husband nor wife could contract with the other.Under the statute a contract between husband and wife has been treated, not as merely voidable, but as 'absolutely void.'Kneil v. Egleston, 140 Mass. 202, 203, 4 N.E. 573;Atkins v. Atkins, 195 Mass. 124, 128, 80...