Marco v. Green

• Decision Date: 08 July 1993
• Citation: 415 Mass. 732,615 N.E.2d 928
• Parties: Julie Hickey MARCO, Administratrix, 1 v. Warren S. GREEN, Administrator, 2 & another. 3
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 928

615 N.E.2d 928

415 Mass. 732

Julie Hickey MARCO, Administratrix, ¹ v. Warren S. GREEN, Administrator, ² & another.³

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 3, 1993.

Decided July 8, 1993.

Laurence S. Boisvert, Concord, for plaintiff.

Richard M. Haley, Boston, for defendants.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The issue before us is whether a voluntary administratrix acting pursuant to G.L. c. 195, § 16 (1990 ed.), has the legal authority to maintain or compromise a wrongful death action under G.L. c. 229, § 2 (1990 ed.). We summarize the relevant facts established by statements, affidavits, and other materials in the record.

On August 26, 1988, Kenneth S. Hickey (decedent) died in the course of a surgical operation performed by Dr. Richard E. Wilson at Brigham and Women's Hospital. On March 6, 1991, a judge in the Probate and Family Court for Middlesex County appointed the decedent's surviving spouse, Julie Hickey Marco (Marco), administratrix with the will annexed of the decedent's estate. On August 27, 1991, Marco filed a wrongful death claim in the Superior Court against the estate of Dr. Wilson, who had died in March, 1989, and against Brigham and Women's Hospital. In her complaint, Marco alleged that Dr. Wilson negligently caused the decedent's death by allowing a long clamp to crush the tissue to which it was attached. Marco further alleged that the clamp fell off, thereby causing massive arterial bleeding which resulted in the decedent's death.

On November 15, 1991, the defendants moved to dismiss Marco's complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The defendants presented the following uncontroverted facts in support of their motion: On September 27, 1988, Kathleen Hickey (Hickey), the decedent's daughter from a prior marriage, undertook to act as voluntary administratrix of the decedent's estate. On July 28, 1989, Hickey filed, in the Probate and Family Court for Norfolk County, a notice of claim against Dr. Wilson's estate for damages arising from the decedent's death. ⁴ With the assistance of her attorney, Hickey subsequently negotiated a $375,000 settlement with Dr. Wilson's malpractice insurer, in consideration of which Hickey signed a general release purporting to discharge the defendants of all liability arising from the decedent's death. ⁵ This release, ⁶ the defendants argued, was binding on Marco and barred her wrongful death action.

The motion judge treated the defendants' motions to dismiss as motions for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The judge held that, under G.L. c. 229, § 2, a wrongful death claim may be brought by the "executor or administrator of the deceased." The judge noted that the statutes of the Commonwealth establish various categories of executors and administrators. ⁷ The use of a general term in G.L. c. 229, § 2, the judge reasoned, indicates that no distinction should be made between such categories and that a voluntary administratrix may maintain or compromise a wrongful death claim. Moreover, the judge held, G.L. c. 195, § 16, provides independent statutory support for such conclusion because § 16 authorizes a voluntary administratrix to "receive payments and discharge debts" and to "negotiate or assign any chose in action."

The judge found that Hickey fully complied with the requirements of § 16, ⁸ and in light of his rulings of law, he concluded that Hickey released the defendants of all liability arising from the decedent's death. Accordingly, the judge allowed the defendants' motions and entered summary judgment in their favor. Marco now appeals, arguing that the judge's legal conclusions were erroneous.

General Laws c. 229, § 2, governs actions for recovery of damages arising from wrongful death. In Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222 (1972), this court explained that § 2 establishes procedures for the recovery of damages the substantive right to which is anchored in the common law. Id. at 71, 284 N.E.2d 222. See Cook v. Hanover Ins. Indem. Co., 32 Mass.App.Ct. 555, 559, 592 N.E.2d 773 (1992). One such procedure is the requirement that the "executor or administrator of the deceased," rather than any beneficiary of the estate as such, act as the plaintiff in a wrongful death action brought on behalf of the designated categories of beneficiaries. G.L. c. 229, § 2. See Gaudette, supra. ⁹

These words unquestionably encompass administrators appointed pursuant to G.L. c. 193, § 1 (1990 ed.), and executors appointed pursuant to G.L. c. 192, § 4 (1990 ed.). See Koutoudakis v. Great Am. Co., 285 Mass. 466, 467, 189 N.E. 621 (1934), and cases cited. ¹⁰ A public administrator also may maintain or compromise a wrongful death claim on behalf of the estate which he or she represents. O'Rourke v. Sullivan, 309 Mass. 424, 427, 35 N.E.2d 259 (1941). Such authority flows from the statutory provision stating that a public administrator "shall, except as otherwise provided in this chapter, administer estates and render accounts in the same manner as other administrators." Id., quoting G.L. (Ter.Ed.) c. 194, § 4. ¹¹

The Legislature, however, has established limitations on the power of other administrators or executors to bring legal actions. The Legislature, for instance, has authorized a "special administrator" to bring only such actions as are necessary "to collect all the personal property of the deceased and preserve the same for the executor or administrator when appointed." G.L. c. 193, § 11 (1990 ed.). See G.L. c. 192, § 14 (1990 ed.) (similarly limiting ability of temporary executor to bring legal action). Also, the Legislature clearly intended to deprive an "executor in his own wrong," defined as one who "injuriously intermeddles with any personal property of a deceased person, without being thereto authorized by law," of the power to bring any legal action whatsoever. G.L. c. 195, § 14.

We strive to construe related statutes harmoniously so as to give rise to a consistent body of law. See Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 247, 606 N.E.2d 1336 (1993). In light of the express statutory limitations on the authority of certain administrators and executors to maintain or compromise a cause of action, we hold that the motion judge erred when he concluded that G.L. c. 229, § 2, does not distinguish between the various categories of executors and administrators. We conclude that such executors or administrators do not come within the ambit of § 2 where another statute deprives them of the power to sue. Accordingly, we turn to the issue whether G.L. c. 195, § 16, so limits the powers of a voluntary administratrix.

Section 16 delineates the circumstances in which a designated person voluntarily may undertake, without appointment by a court, to administer an estate consisting entirely of personal property not exceeding $15,000 in value. ¹² Section 16, first par., requires that such person file a statementcontaining prescribed information as a prerequisite to holding the office of voluntary administrator. ¹³ Section 16, third par., empowers the voluntary administrator to "receive payment of any debt or obligation in the nature of a debt, or delivery of any chattel or asset, scheduled in such statement." ¹⁴ Section 16, fourth par., authorizes the voluntary administrator to "negotiate or assign any chose in action to convert the same to cash in a reasonable amount."

Hickey argues that the motion judge properly concluded that these two clauses authorized her to bring a wrongful death action under G.L. c. 229, § 2. We disagree.

By its plain terms, § 16 provides that a voluntary administrator may receive payment of only those debts or obligations scheduled in the statutorily required statement. This language accords with the informal nature of the office held pursuant to § 16: The status of voluntary administrator may be achieved on fulfilment of essentially administrative formalities and without formal court approval. Cf. G.L. c. 192, § 1 (1990 ed.) (requiring filing of petition for appointment of administrator or executor of estate prior to issuance of letters testamentary or letters of administration). A voluntary administrator is not required to give bond with sufficient sureties to guarantee the proper performance of his or her trust. Cf. G.L. c. 205, § 1 (1990 ed.) (providing that, among other fiduciaries, an "executor, temporary executor or temporary administrator with the will annexed, administrator, [or] administrator with the will annexed" shall give such bond unless exempted pursuant to another section).

In recognition of the relative lack of accountability of a voluntary administrator, the Legislature explicitly has confined the applicability of § 16 to estates of limited value. The requirement that the voluntary administrator file a statement and administer only those assets and debts so itemized evinces a legislative intent to establish a mechanism whereby the use of § 16 is confined to its intended scope. ¹⁵ We would negate both the letter and the spirit of § 16 if we concluded that a voluntary administratrix may compromise a wrongful death claim which is apparently worth at least $375,000 and which was not listed in the requisite statement. ¹⁶

We conclude also that the authority of a voluntary administratrix to "negotiate or assign [a] chose in action" does not encompass the power to maintain or compromise a wrongful death claim. As the motion judge recognized, a wrongful death claim is not a chose in action. See Koutoudakis, supra at 468, 189 N.E. 621. ¹⁷ "The money recovered upon a wrongful death claim is not a general asset of the probate estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution to the statutory beneficiaries." Sullivan v. Goulette, 344 Mass. 307, 311, 182 N.E.2d 519 (1962). Where the statute is not ambiguous...