Eubank Heights Apartments, Ltd. v. LeBow, 81-1456
| Decision Date | 20 January 1982 |
| Docket Number | No. 81-1456,81-1456 |
| Citation | 669 F.2d 20 |
| Parties | EUBANK HEIGHTS APARTMENTS, LTD., Plaintiff, Appellee, v. Estelle I. LEBOW, Executrix of the Estate of Saul L. Lebow, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Jerry E. Benezra, Boston, Mass., with whom Mack M. Roberts, Chestnut Hill, Mass., was on brief, for defendant, appellant.
Nathaniel M. Gorton, with whom James H. Anderson, and Powers & Hall Professional Corp., Boston, Mass., were on brief, for plaintiff, appellee.
Before CAMPBELL and BOWNES, Circuit Judges, and DAVIS, * Judge.
This case is the successor to our decision and judgment in Eubank Heights Apartments, Ltd. v. Estelle I. Lebow, Executrix of the Estate of Saul L. Lebow, 615 F.2d 571 (1st Cir. 1980). There we affirmed the granting of summary judgment to Eubank (hereinafter plaintiff), which had sued Lebow, Executrix, in the United States District Court for the District of Massachusetts upon a default judgment obtained in the state courts of Texas. The Texas judgment was for amounts owed plaintiff on certain notes executed by Saul L. Lebow, deceased, a Massachusetts resident. The notes fell due in the period from March 15, 1973 to March 15, 1975, after Lebow's death, and his wife and executrix, Estelle, did not pay them. After plaintiff learned of Lebow's death, it demanded payment and exercised the right to make the notes payable in Texas, where judicial proceedings were then conducted against the Massachusetts estate, notice being given to the executrix in Massachusetts, who did not appear.
In the previous case, this court sustained the district court's ruling that the Texas judgment was enforceable against the Massachusetts executrix. We held inter alia that suit on the foreign judgment was timely, being permitted under Mass. G.L. c. 197, § 10, even though not within the nine-month period prescribed in Mass. G.L. c. 197, § 9. We observed that the "timeliness of the Texas suit is res judicata" and that we saw no issue of culpable neglect.
This court's opinion went further, however, than merely upholding the district court's money judgment against the estate based on the prior Texas judgment. Judge Aldrich, writing for the court, went on to observe,
The district court correctly recognized that late recovery against the executrix could not be had under section 9, but, apparently ignorant of a right to do so under section 10, relied on Mass. G.L. c. 197, § 29 as authority to enter judgment against defendant as executrix. Although the entry of judgment was correct, the asserted avenue was not. Section 29 is not concerned with actions against executors. However, it does provide for recovery against the assets in the hands of individual distributees, under certain conditions including timeliness, if insufficient assets remain in the hands of the executor. For the same reason that we have found this action timely with regard to section 10, including defendant's timely notice of the claim, we consider that plaintiff meets the condition as against defendant, and defendant may be liable individually under section 29 to the extent she lacked assets as executrix but may have been a distributee. What assets she lacked as executrix but possessed as distributee was not determined below. This matter, if need be, may be pursued on remand.
615 F.2d at 574 (footnote omitted).
The bottom line of our decision was:
It is clear from the above that this court was not only affirming the district court's money judgment against the executrix (albeit under a different Massachusetts statute), but was authorizing proceedings, if necessary, on remand to determine, "what assets (Mrs. Lebow) lacked as executrix but possessed as distributee." Such proceedings could only be for the purpose of allowing plaintiff to reach, if need be, any amounts distributed by Mrs. Lebow to herself in the lengthy period during which litigation had been taking place. That this was so is indicated not only by the direction that the case be remanded (instead of only affirmed), but by the express direction that this "matter, if need be, may be pursued on remand below." Not only did the court plainly believe that section 29 permitted plaintiff to recover from Mrs. Lebow, qua distributee, any necessary sums paid to or for herself when she was executrix, we made express provision that "the matter" be pursued on remand, in this very case rather than in some other.
Against this background, and with these directions for guidance, plaintiff returned to the district court to collect its judgment. An execution for $62,130.82 was secured in the district court on June 27, 1980, four months after our opinion had come down. The execution ran against Estelle I. Lebow, Executrix of the Estate of Saul L. Lebow. It was returned unsatisfied. Thereafter plaintiff moved to enforce the execution, and a hearing was held on the motion before a magistrate.
At the hearing it appeared, and the magistrate so found, that the executrix had by then fully distributed the estate, 1 but that Mrs. Lebow's own distributive share was in an amount sufficient to satisfy the execution. The sole issue was thus, as stated by the magistrate, whether the estate being without funds to meet the execution, the executrix was now liable individually to the extent of such assets as she had come to possess as a distributee. The magistrate recommended that the court answer this question in the negative, noting defendant's arguments that she was not a party to the action in her individual capacity; that holding her liable in her individual capacity would deprive her of her distributive property "without opportunity to litigate the question and thereby would be a deprivation without due process of law"; and that an opportunity to litigate her liability as distributee under applicable Massachusetts law "is essential." The magistrate felt that this court's decision merely "pointed out the possibility of individual liability under Mass. G.L. c. 197, § 29," and that "(S)uch liability, if any, has yet to be determined." The magistrate recommended denial of the motion to enforce the execution.
The district court rejected the magistrate's recommendation. The court held that,
the only question left to be decided by remand was "what assets (Estelle I. Lebow)...
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