Home JAMES H. QUIRK, administrator, vs. LOIS P. CARROLL (and a companion case).

13 Mass. App. Ct. 959

March 3, 1982

This case arises out of two petitions filed in a Probate Court for the allowance of the following accounts: (1) the first and final account of James H. Quirk as administrator d.b.n. of the estate of Robert Plattner; and (2) the first account of Mr. Quirk as executor of the will of Honora Q. Plattner, the wife of Robert. Lois P. Carroll objected to items in Mr. Quirk's account in Honora's estate where he credited himself with amounts for legal fees due from Robert's estate, for legal fees due from Honora's estate, for administrator's fees for Robert's estate and for executor's fees for Honora's estate. The basis for the objections was that the fees were excessive. The judge allowed the accounts with reductions in each of the fees claimed. Mr. Quirk challenges the probate judge's reductions in his respective fees.

1. The judge did not err in reducing Mr. Quirk's fees for services performed for Robert and Honora Plattner prior to their deaths (compare McMahon v. Krapf, 323 Mass. 118 , 124-125 [1948]) and as attorney for their estates (see Sullivan v. Goulette, 344 Mass. 307 , 312-313 [1962]). Much of the work was done for Honora and Robert, individually and jointly, during their lives, and the combined amount the judge awarded exceeds that which Mr. Quirk claimed in his May 6, 1980, affidavit (without benefit of "time records") was owing. There is no indication that the judge did not consider this affidavit in reaching his decision.

2. The judge's reduction of executor's fees was well within the bounds of discretion vested in him by G. L. c. 206, Section 16. See McMahon v. Krapf, supra at 122-124. Compare Corcoran v. Thomas, 6 Mass. App. Ct. 190 , 191 (1978).

Neither party is to have costs of appeal.

Judgments affirmed.

Home CYNTHIA FOUNDS & another vs. BOARD OF TRUSTEES OF SOUTHEASTERN MASSACHUSETTS UNIVERSITY.

13 Mass. App. Ct. 959

March 3, 1982

The plaintiff has failed to state a claim for relief in tort because the university was at the time of the incident in question immune from liability on the basis of sovereign immunity. See, e.g., Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658 , 659 (1975). See also Kerlinsky v. Commonwealth, 7 Mass. App. Ct. 910 (1979).

Page 960

Nor does the plaintiff state a claim in contract because it cannot be found on the evidence, as is necessary, that the plaintiff had enrolled in (or even applied for) any course or program at the defendant institution leading to a master's degree in education. See Mahavongsanan v. Hall, 529 F.2d 448, 450 (5th Cir. 1976). Contrast Peretti v. Montana, 464 F. Supp. 784, 787 (D. Mont. 1979).

2. As the principal plaintiff has failed to state any legally cognizable claim against the Board of Trustees, the derivative claim of her spouse likewise fails.

3. Deciding this matter as we do on the merits, we find it unnecessary to discuss any of the procedural points raised in this appeal.

Judgment affirmed.