Opinion
CA97-0340A
June 18, 2001
MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
I. Introduction
The plaintiff claims that a now-deceased person breached a contract to sell him some land. His suit is against the beneficiaries of the estate of the deceased seller. The case is controlled by the one year statute of limitations for actions against beneficiaries of a decedent's estate, G.L.c. 197, § 29. The defendants are entitled to summary judgment.
II. The 1977 Contract, 1979 Estate, and the 1997 Lawsuit
In 1977 Rose Callahan agreed in a written contract to sell the plaintiff twenty acres of land in Hanover. The agreed price was $30,000. The plaintiff paid a $1,000 deposit when he signed the agreement. The agreement provided that the plaintiff would pay another $1,000 in cash upon the delivery of the deed and that he would give the seller a note and mortgage for remaining $28,000. At some time after the signing of the agreement the plaintiff paid a second $1,000 toward the purchase.
Rose Callahan was eighty-four at the time the contract was signed. No specific date was set for a closing. The contract stated that the buyer "agrees to pass papers within fifteen days of receipt of marketable title from sellers attorney."
Rose Callahan died in 1979. During the two years between the signing of the contract and her death, Rose Callahan never conveyed title to the plaintiff. During that two year period, the plaintiff contacted Rose Callahan's attorney and told him that he would be able to close at his earliest convenience.
After Rose Callahan died, it was discovered that she only held an undivided one-fifth interest in the land. Rose Callahan's parents had died intestate. Rose Callahan and other relatives owned the land in common as the heirs at law of her parents.
Rose Callahan's will directed that her real and personal property be devised and bequeathed to a brother and sister. If the brother and sister died before her, the will directed that the property be devised and bequeathed "to be divided in accordance with the laws of the Commonwealth as intestate property." The will was allowed in 1979. The brother and sister named as devisees died before Rose Callahan. The property, including Rose Callahan's interest in the twenty acres, was distributed to the devisees. Under the terms of the will, the devisees were the same as the heirs. The devisees were Rose Callahan's surviving nieces and nephews and the children and grandchildren of deceased nieces and nephews.
Eighteen years later the plaintiff filed the present action against Rose Callahan's devisees and those who may have inherited an interest in the land from a deceased devisee. The plaintiff now seeks monetary damages from the defendants for an alleged breach of the purchase and sale contract. The plaintiff and the defendants have moved for summary judgment. The material facts are undisputed.
III. The Statute of Limitations for an Action Against the Beneficiaries of a Decedent's Estate
The ordinary six-year contract statute of limitations, G.L.c. 260, § 2, does not bar the present action because the plaintiff's purchase and sale agreement contained a recital that it "was to take effect as a sealed instrument." See G.L.c. 4, § 9A. For actions upon contracts under seal, the statute of limitations is twenty years. G.L.c. 260, § 1.
The defendants argue the equitable defense of laches, and they also cite the plaintiff's failure to comply with G.L.c. 197, § 9, by bringing an action against the executor within the limitations periods in that statute. The court concludes that this case is controlled by G.L. c. 197, §§ 28 and 29, rather than G.L.c. 197, § 9. Section 9 applies to actions by creditors of a deceased against the executor or administrator of the estate or against a trustee. This is not such a case. Sections 29 and 29 govern cases like the present one which is an action by a creditor of the deceased against "the heirs and next of kin of the deceased or against the devisees and legatees under his will." G.L.c. 197, § 29.
The plaintiff can be treated as a creditor of Rose Callahan for purposes of G.L.c. 197, §§ 9, 28 and 29. Pelletier v. Chouinard, 27 Mass. App. Ct. 92, 93 n. 1 (1989). The plaintiff filed a notice of claim in the Probate Court in the matter of Rose Callahan's estate. The claim was not allowed. The plaintiff thereafter never brought an action against the executor, either within or without the short time periods permitted for such an action under the version of G.L.c. 197, § 9, in effect at the time of the settlement of the estate. M.G.L.A. c. 197, § 9, Historical and Statutory Notes at 261 (text of Section 9 in effect prior to the 1989 amendments) (1990).
Under the version of G.L.c. 197, § 9, in effect at the time of Rose Callahan's death, a notice of a claim was not enough unless the executor allowed the claim. If the claim was not allowed, the creditor under Section 9 was required to "commence[ ]" an "action" against the executor and serve "the process in such action" upon the executor within the prescribed time periods. M.G.L.A. c. 197, § 9, Historical and Statutory Notes at 261 (text of Section 9 in effect prior to the 1989 amendments) (1990).
The court will assume arguendo that the plaintiff's claim is a claim which could have been brought against the devisees under G.L.c. 197, §§ 28 and 29, even though his cause of action had a accrued by the time of his notice of claim against the estate and he never brought an action against the executor under G.L.c. 197, § 9. Cf. Cantor v. Newton, 4 Mass. App. Ct. 686, 691 (1976). Nevertheless, the plaintiff still was required to comply with the Section 29 statute of limitations. He was required to have commenced the present action against the heirs "within one year next after the time when such right of action accrues." G.L.c. 197, § 29.
A creditor of a deceased person has no common law right to bring a breach of contract action against the deceased's heirs. "The right to recover from an heir based upon an obligation of the deceased is entirely statutory, and the applicable statutes are strictly construed." Pelletier v. Chouinard, 27 Mass. App. Ct. 92, 93 (1989). The plaintiff had knowledge of the alleged breach of contract and knowledge that he had been harmed no later than 1979 when he filed in the Probate Court the notice of claim against Rose Callahan's estate. His cause of action had accrued by at least 1979. Flannery v. Flannery, 429 Mass. 55, 58 (1999) ("The general rule in breach of contract cases is that a cause of action accrues when the contract has been breached"). The present suit against the Rose Callahan's devisees and those who claim under them must be dismissed because it was entered seventeen years too late. Pelletier, supra, 27 Mass. App. Ct. at 93-94; cf. Flannery v. Flannery, 429 Mass. 55 (1999) (applying the statutes of limitations in G.L.c. 197, §§ 9(a) and 13).
In 1984, the Town of Hanover filed a Land Court petition to foreclose a tax lien regarding the same land. The plaintiff filed in the Land Court matter a notice of the same contract claim that is the subject of this case. In his Land Court claim notice the plaintiff offered to pay the outstanding taxes and asked to have the tax lien assigned to him. The Town later acknowledged satisfaction of the tax title account and withdrew the petition. The plaintiff's 1984 claim notice in the tax lien case had no legal effect on the previously expired limitations period for an action against the heirs under G.L.c. 197, § 29.
IV. The Argument for an Equitable Relief Exception
The plaintiff seeks to avoid the statute of limitations by arguing that his claim seeks equitable relief in the form of specific performance and that this qualifies as an equitable relief exception to the statute of limitations. See New England Trust Co. v. Spaulding, 310 Mass. 424 (1942). This argument fails for several reasons.
Specific performance is no longer a requested or an available remedy in this case. The plaintiff's complaint did seek an order directing the heirs to convey to him their interests in the land. But the land has since been sold. In 1998, one of the heirs filed a petition to partition the interests in the Hanover land that was held in common by Rose Callahan and the heirs at law of her parents. The land in this partition to partition was the same as the twenty acres that is the subject of this case. The Probate and Family Court allowed the petition. On November 15, 2000, a commissioner appointed by the court sold the land to Donald E. Shute, Trustee of Broadway Realty Trust for $600,000. The commissioner deposited $75,000 of the net proceeds of the sale into an account of the First Judge of Probate in escrow as security for the plaintiff's claim in the present case.
The plaintiff is no longer seeking specific performance. His revised claim for relief is now stated as follows: "The essence of Robinson's claim is that he is entitled to receive one-fifth of the net proceeds [of the commissioner's sale of the property], because Callahan owned an undivided one-fifth interest in the subject premises." Memorandum in Support of Plaintiff's Motion for Summary Judgment 5. Such relief, if awarded, would be monetary damages — benefit-of-the-bargain contract damages — — not specific performance. Additionally, specific performance is not available because the defendants no longer own the property. The person to whom the property was sold, the only person with the ability to convey title, is not a defendant in this case.
The plaintiff's Statement in Support of Plaintiff's Motion for Summary Judgment, par. C, also claims that "Robinson is entitled to receive one-fifth of the net proceeds, because title research performed after Callahan's death showed that she owned only an undivided on-fifth interest in the subject premises." At the summary judgment hearing the plaintiff reiterated that one-fifth of the net sale proceeds is the relief that he now seeks.
The alleged equitable relief exception does not apply to the plaintiff's claim for monetary damages. Even if it did, it could not be applied to an action against heirs filed eighteen years after the cause of action accrued. Permitting an equitable relief exception in the present case would contravene the strict construction of the statute that creates the narrow statutory right to sue the beneficiaries of a decedent's estate. Pelletier, supra. Moreover, if this were to be treated as an equitable relief claim the delay of eighteen years after the estate was settled is so extreme as to amount to laches as a matter of law.
V. Order
The plaintiff's motion for summary judgment is denied.
The defendants' motions for summary judgment is allowed.
A judgment will enter dismissing the action against all defendants who have not defaulted.
___________________________ Charles J. Hely Justice
June 18, 2001