Reilly v. Whiting

• Decision Date: 29 June 1955
• Citation: 332 Mass. 745,127 N.E.2d 567
• Parties: Hamilton G. REILLY et al. v. Grace H. J. WHITING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 567

127 N.E.2d 567

332 Mass. 745

Hamilton G. REILLY et al. v. Grace H. J. WHITING.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued April 4, 1955.

Decided June 29, 1955.

Stuart DeBard, Boston, for plaintiff.

Philip B. Buzzell, Boston, for defendant.

Before QUA, C. J., and RONAN, SPALDING, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an action of contract by the plaintiffs ¹ to recover a deposit of $1,500 paid to the defendant ² on an agreement to purchase and sell real estate in Higham, to include 'the buildings thereon and the contents of the barn on said premises.' It was tried to a judge, without jury, who found for the defendant. The plaintiffs without fault on their part failed to perfect their exceptions and the case comes to this court upon a report of the judge, presumably under G.L. (Ter.Ed.) c. 231, § 111, for the determination of two questions of law: '1. Were the plaintiffs entitled to a refund of the deposit * * *? 2. Was the action barred by the statute of limitations?'

The report discloses that the defendant was appointed executrix of the will of her husband on August 26, 1947, and furnished a bond in the sum of $1,000. The will authorized her as executrix 'to sell all or any part of my real estate at public or private sale in her discretion and to give all proper deeds and instruments therefor.' She was also the sole beneficiary under the will. On October 8, 1947, she entered into an agreement, as executrix and individually, with the plaintiffs to convey the premises 'by a good and sufficient executrix' deed' and then and later received deposits aggregating $1,500. The agreement contained the not unusual provision that if the seller 'shall be unable to give title or to make conveyance as * * * stipulated, any payments made under this agreement shall be refunded.' On July 1, 1948, the date finally set for passing papers, the plaintiffs refused to accept the executrix's deed tendered to them by the defendant and demanded the return of the deposit which was refused. The grounds for the plaintiffs' refusal were: 'a. no probate license to sell had been obtained, b. no inventory of the estate had been filed, c. the probate bond was in the sum of $1,000, and d. Massachusetts inheritance tax liens were not released.' The defendant does not dispute these facts. The writ in this action was dated January 2, 1951.

The principal contention of the defendant is that the plaintiffs are barred from recovering because of the so called short statute of limitations, G.L. (Ter.Ed.) c. 260, § 11, which reads in part, 'An action founded on any contract * * * if made * * * by any person acting as the executor * * * of the estate of a deceased person, shall be brought within one year * * * after the right of action accrues'. Manifestly the right of action accrued on July 1, 1948, so that if this statute applies the plaintiffs may not recover. We are of opinion that it does apply.

The defendant admits in her brief that she was personally liable on her agreement to sell even though it was signed by her as 'executrix and individually.' This principle of the individual liability of an executor was early established but an exception is made in this Commonwealth in case of funeral expenses of the deceased where the executor may be charged in his representative capacity. Luscombe v. Ballard, 5 Gray,...