Howe v. Johnston

• Decision Date: 23 January 1996
• Docket Number: No. 94-P-1946,94-P-1946
• Citation: 660 N.E.2d 380,39 Mass.App.Ct. 651
• Parties: Stephen W. HOWE, administrator, 1 v. Joseph F. JOHNSTON, administrator, 2 & others. 3
• Court: Appeals Court of Massachusetts

Page 380

660 N.E.2d 380

39 Mass.App.Ct. 651

Stephen W. HOWE, administrator, ¹ v. Joseph F. JOHNSTON, administrator, ² &amp others. ³ No. 94-P-1946.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 12, 1995.

Decided Jan. 23, 1996.

Richard F. Benway, Westwood, for defendants.

John T. Daley, Boston, for plaintiff.

Before DREBEN, GILLERMAN and JACOBS, JJ.

DREBEN, Justice.

Adeline Fuoco, age ninety-three, died on April 28, 1989, survived by ten children. In 1986, she transferred a parcel of real estate to her son Joseph. In 1991, Stephen Howe, the administrator of her estate, sought to set aside the deed on the ground that Adeline had been incompetent at the time of execution. After a trial, a probate judge declared the deed null and void. ⁴ Joseph's daughter and sole heir, Kelley Dunshee, and Joseph Johnston, the administrator of Joseph's estate--Joseph Fuoco had died in 1990--appeal from that judgment. They claim that the judge erred in dismissing Dunshee as a defendant as she was a necessary party under Mass.R.Civ.P. 19, 365 Mass. 765 (1974), and also erred in denying Dunshee's motion to dismiss on the ground of the statute of limitations, see G.L. c. 197, § 9(a), and c. 260, § 2A. We agree that she was a necessary party and remand the case for further proceedings.

1. Dismissal of Kelly Dunshee as a party. Howe moved to dismiss Dunshee as a defendant on the ground that she was "not a[n] heir at law of the ... decedent," Adeline Fuoco. Although an earlier motion to dismiss had been denied, Howe's second motion was allowed on December 8, 1993. ⁵

Dunshee argues that her interests differ from those of the administrator of Joseph's estate, and that she was denied the opportunity to participate in both pretrial discovery and in the trial itself. We need not consider whether her interest differs from Johnston's as it is established under Massachusetts law that an administrator, unless given special authority, is legally a stranger to real property, and an action for a conveyance will normally not lie against him. Newhall, Settlement of Estates § 9.10 (Belknap rev. 5th ed. 1994). Thus in Roper v. Murphy, 317 Mass. 176, 178, 57 N.E.2d 569 (1944), an action brought against the administrator of an estate to compel the conveyance of a parcel of real estate, the Supreme Judicial Court pointed out that upon a decedent's death, title of record passes to his heirs and not to his administrator. The court held that "[a]ny rights that the statutory heirs of the intestate or those claiming under him might have in the real estate involved could not be adjudicated properly in this proceeding to which they have not been made parties." Id. at 178, 57 N.E.2d 569. It follows that Dunshee should not have been dismissed as a party. For this reason, the judgment is vacated and the case remanded to the Probate Court for proceedings in which Dunshee can participate.

2. Statute of limitations. Dunshee and Johnston also claim that their motion to dismiss Howe's action should have been allowed because it is barred by both G.L. c. 197, § 9, and by G.L. c. 260, § 2A. The claim is without merit. Section 9 of G.L. c. 197 ⁶ bars only those actions brought by a creditor of an estate after the expiration of the one year period of limitations and does not bar actions to enforce equitable interests in property. See New England Trust Co. v. Spaulding, 310 Mass. 424, 430, 38 N.E.2d 672 (1941).

The other statute relied on in Dunshee's motion to dismiss, § 2A of G.L. c. 260, ⁷ establishes a three year limit during which an action in tort must be commenced. Chapter 260, § 7, as amended through St.1987, c. 522, § 19, however, provides:

"If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed."

Howe's complaint alleged that Adeline was "blind, of unsound mind, and not competent to deal with or dispose of her property" at the time she executed the deed to Joseph. The allegations, if proven, come within the term "incapacitated by reason of mental illness." See Hornig v. Hornig, 6 Mass.App.Ct. 109, 111, 374 N.E.2d 289 (1978). Contrary to Dunshee's contention, G.L. c. 260, § 10, ⁸ the relevant portion of which is set forth in the margin, does not limit the application of the tolling provision of § 7. If it is shown that Adeline was incapacitated and the incapacity continued until her death, the action, filed on July 18, 1991, was timely since it was brought within three years of her death.

Johnston and Dunshee also argue that the judge erred in denying their motion to dismiss because Howe failed to file any opposing affidavits. While Howe has the burden of proving facts which will take the case out of the statute of limitations, the affidavit filed by Dunshee in support of her motion to dismiss was that of her attorney and did not in any way address Adeline's state of mind at the time she executed the deed. It had no bearing on the critical question of Adeline's competency for purposes of the statute of limitations or on the merits. That the judge below erroneously referred to affidavits submitted by Howe with his opposition to the motion to dismiss ⁹ is not significant. Johnston and Dunshee were not entitled to summary judgment as matter of law by reason of their counsel's affidavit.

3. Standing of executor or administrator. Johnston and Dunshee also claim that Howe, as executor of Adeline's estate, lacks standing to bring this action to set aside the deed to Joseph. They maintain that since title to real estate descends immediately to Adeline's heirs at law or to her devisees, ¹⁰ Joseph's brothers and sisters were the only parties who properly could be named as plaintiffs. Their argument makes no reference to G.L. c. 204, § 1, which provides, in pertinent part, that the equity jurisdiction of the Probate Court

"shall ... extend to the specific enforcement of reconveyance by persons alleged to be improperly holding or retaining property belonging to the estate of a deceased person ... and to the cancellation of deeds, releases or other conveyances or acquittances executed by a person since deceased ... on the petition of the executor, administrator, guardian, conservator or receiver, as the case may be." (Emphasis supplied).

We are aware that, despite the statute, the quoted clause of which was inserted by St.1929, c. 342, § 2, there is Massachusetts case law denying the right of an administrator to seek reconveyance. DeAngelis v. Palladino, 318 Mass. 251, 252, 61 N.E.2d 117 (1945) (administrator cannot bring action for reconveyance). See Medlinsky v. Premium Cut Beef Co., 320 Mass. 22, 25, 67 N.E.2d 762 (1946) (administrator only entitled to rents prior to decedent's death; heirs entitled to them thereafter); Ryan v. McManus, 323 Mass. 221, 225, 231-232, 80 N.E.2d 737 (1948) (administrator lacks standing to seek conveyance).

These cases, however, do not mention the statute, and it may not have been brought to the court's attention. The wording of the statute suggests that Howe, as the administrator or executor of Adeline's estate, is a proper party to bring this equitable action to set aside the deed under G.L. c. 204, § 1. See 1 Newhall Settlement of Estates § 2:14, at 90 (Belknap rev. 5th ed. 1994). But see §§ 9.10 and 11.9. In any event, many, if not all of Adeline's heirs were parties to the action (as defendants) and were in effect joining in Howe's complaint. In such circumstances, the requisite parties were before the court. On remand, by amendment, the alignment of the parties can be changed and Adeline's heirs substituted as plaintiffs. See Ryan v. McManus, 323 Mass. at 232, 80 N.E.2d 737. See also Rafferty v. Sancta Maria Hosp., 5 Mass.App.Ct. 624, 627, 367 N.E.2d 856 (1977) (amendment may be allowed to bring in parties who would have been time-barred from commencing an independent action.)

4. Miscellaneous. Dunshee and Johnston also raise several evidentiary issues which we decline to reach as they may not arise in the course of a new trial. The plaintiff will, of course,...