4 Mass. App. Ct. 124

November 13, 1975 - March 8, 1976

Middlesex County


Where a decree of a Probate Court, naming the defendant as executor of a will, was affirmed by this court on March 7, 1973, an action of contract for services rendered by the plaintiff to the decedent prior to his death, which was served on the defendant on March 14, 1974, was not barred by the short statute of limitations, G. L. c. 197, Section 9. [125-127]

CONTRACT. Writ in the Superior Court dated March 11, 1974.

A motion for summary judgment was heard by Beaudreau, J.

Paul F. X. Powers for the plaintiff.

Paul C. Kilian for the defendant.

Page 125

GOODMAN, J. On March 7, 1973, this court affirmed the decree of a Probate Court entered April 14, 1971, which had allowed a will and appointed the defendant herein as executor. Sletterink v. Rooney, 1 Mass. App. Ct. 809 (1973). (On the latter date the executor's bond had been approved.) On March 14, 1974, the defendant was served with a writ (dated March 11, 1974, and received by a deputy sheriff for service on March 12, 1974) in an action of contract for services rendered by the plaintiff to the decedent prior to his death. A claim was filed in the Probate Court on March 15, 1974. The defendant moved for summary judgment on the ground that the action was barred by the short statute of limitations (G. L. c. 197, Section 9, as amended through St. 1954, c. 552, Section 1). At the time of the decedent's death on July 31, 1968, this statute required that such actions be brought within one year from the executor's "giving bond for the performance of his trust." [Note 1] See Newhall, Settlement of Estates (4th ed.), Section 189, p. 546, fn. 1. The motion was allowed, and the plaintiff appealed from the judgment dismissing the action. We hold that the defendant was not entitled to summary judgment because the applicable one year statutory period had not run by March 14, 1974.

The decree of a Probate Court is "stayed [upon appeal] until the determination thereof by the supreme judicial court; but if, upon such appeal, such act is affirmed, it shall thereafter be of full force and validity." G. L. c. 215, Section 22. (Contrast Section 23 and Section 24, appeals from probate decrees in equity and in divorce, separate support, and custody cases.) See Smith v. Smith, 175 Mass. 483, 484-485 (1900), in which the Supreme Judicial Court held that the short statute of limitations was suspended during the pendency

Page 126

of an appeal from a decree allowing a will and appointing an executor, since the executor could not be sued during that period. The court further decided that because of the desirability of a rule which can be easily applied the short statute should begin to run anew for the entire period when the Probate Court decree was affirmed by the Supreme Judicial Court. [Note 2]

Ordinarily, statutes which were in effect prior to the establishment of this court (see G. L. c. 211A, inserted by St. 1972, c. 740) and which are related to proceedings on appeal to the Supreme Judicial Court, are applicable to this court. See Paananen v. Rhodes, 1 Mass. App. Ct. 12, 15-16, fn. 4 (1972). However, we cannot equate the determination by this court of an appeal with the "determination thereof by the supreme judicial court" (G. L. c. 215, Section 22). Prior to Mass.R.A.P. 23, [Note 3] 365 Mass. 872 (1974), effective on July 1, 1974, the determination of the Supreme Judicial Court, embodied in its rescript and opinion or in its rescript, issued immediately and, unless it was otherwise ordered, became effective immediately as a basis for the entry of an appropriate decree in the trial court. This was never the case with a rescript issued by this court. See G. L. c. 211A, Section 11. Rule 3:24, Section 7 (7), of the Supreme Judicial Court, 359 Mass. 840 (1972), contemplated that the rescript of this court would be sent to

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the trial court immediately, as in the case of a rescript of the Supreme Judicial Court. But that rule was designed to maintain the status quo until at least "fifteen days after the latter [the trial] court receives the rescript from the Appeals Court." A case was not "ripe for judgment or the entry of a final decree in the trial court" until the expiration of that period or the final disposition of an application for further review; and, indeed, if such an application was granted, the rescript of this court was nullified. See e.g. Ford v. Flaherty, 364 Mass. 382, 388 (1973); Miller v. Federated Dept. Stores, Inc. 364 Mass. 340, 351 (1973).

Accordingly, in applying G. L. c. 215, Section 22, to a "determination" by this court, the statute had to be read in the light of Rule 3:24 which contemplated that the determination be inoperative for at least fifteen days. Thus, the stay occasioned by the appeal from the Probate Court continued, and the defendant could not have been sued as executor earlier than fifteen days after March 7, 1973. The requirements of the short statute, G. L. c. 197, Section 9, were complied with by March 14, 1974, well before the expiration of one year after March 22, 1973. [Note 4]

Judgment reversed.


[Note 1] The short statute was subsequently amended by St. 1971, c. 548, Section 1, to shorten the applicable period from one year to six months; by Section 2 it was made to "apply only to estates of persons dying on or after [January 1, 1972]. . . ." For completeness we note St. 1972, c. 256, which increased the period from six months to nine months. The 1972 statute is described in its title as "[a]n Act extending the time for the bringing of certain actions . . . ", referring presumably to the actions provided for in the 1971 statute.

[Note 2] Compare Cole v. Violette, 319 U.S. 581 (1943), in which the Supreme Court of the United States held that the three-month period provided for an appeal from the Supreme Judicial Court began to run on the date of the rescript by the Supreme Judicial Court. The Supreme Court characterized the rescript as "an order of the court, and one which finally disposed of all the issues in the case, leaving nothing to be done but the ministerial act of entering judgment in the trial court." See Edgecomb v. Edmonston, 258 Mass. 568 (1927), and the discussion in Carilli v. Hersey, 303 Mass. 82 (1939), of various distinctions between the rescript of the Supreme Judicial Court and a decree after rescript in connection with an attempt to appeal such a decree.

[Note 3] It should be emphasized that the result in this case is not governed by the Massachusetts Rules of Appellate Procedure, and we express no opinion as to their operation in the circumstances of this case. The rule here relevant is S.J.C. Rule 3:24, Section 7, adopted November 27, 1972, and prior to the December 30, 1974 amendment. See 359 Mass. 833, 834 (1972), and footnote thereon.

[Note 4] We need not concern ourselves with the other argument of the plaintiff that the short statute was tolled by the failure of the defendant (who resided in New Hampshire) to appoint, prior to July 18, 1974, an agent for service in accordance with G. L. c. 195, Section 8. This failure made him subject to removal. G. L. c. 195, Section 10. But it did not ipso facto invalidate his appointment. See Fay v. Fay, 299 Mass. 608, 609-611 (1938).