ARA ERESIAN, JR. VS. MARJORIE E. MATTEI, administratrix [Note 1]

DREBEN, J. This case concerns the interpretation of G. L. c. 197, s.s. 13 and 14, sections of long standing [Note 2] which apply to creditors of a deceased whose claims do not accrue within one year after the death of the deceased. A judge of the Probate Court ruled that the plaintiff failed to comply with the provisions, and on the motion of the defendant, dismissed the

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plaintiff's action. This appeal by the plaintiff followed. We affirm the dismissal.

Before discussing in detail the provisions involved here, it may be helpful to provide an outline (without the exceptions and qualifications) of the statutory limitations for the recovery of debts of a deceased person. There is a short statute of limitations, G. L. c. 197, s. 9(a), which requires creditors to bring an action against the executor or administrator within one year after the date of death of the deceased. For claims which have not yet accrued, a creditor, at any time before the estate is "fully administered," may make application under G. L. c. 197, s. 13, to the Probate Court for the retention of sufficient assets to satisfy those claims. Such claims shall not be conclusive against the executor unless the creditor brings an action under s. 14, in a court having jurisdiction of such claims - usually not the Probate Court - within one year after the claim becomes payable. After the "settlement" of an estate, a creditor may, within one year after the right of action accrues, recover such claim against the distributees of the decedent's estate. G. L. c. 197, s. 28. The general purpose of these provisions "is that the settlement of the estates of deceased persons should not be unnecessarily delayed." Forbes v. Harrington, 171 Mass. 386 , 391 (1898). See Flannery v. Flannery, 429 Mass. 55 , 57 (1999). Here, we are concerned, as indicated earlier, with the provisions of c. 197, s.s. 13 and 14.

The facts are not contested. Alfred J. Mattei (Alfred) died on May 6, 1985. Prior to his death, he executed three promissory notes payable to the plaintiff [Note 3]. Their face amount totaled $40,000 and each bore interest at the rate of twelve per cent per year. One of the notes came due in February, 1993, one in November, 1994, and the third in December, 1994.

On December 9, 1997, the plaintiff, pursuant to G. L. c. 197, s. 13, filed a petition to require the defendant to retain sufficient assets to pay the notes plus interest or to post an indemnity bond. The first sentence of s. 13 provides:

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"A creditor of the deceased, whose right of action shall not accrue within one year after the date of death of the deceased, may present his claim to the probate court at any time before the estate is fully administered; and if, upon examination thereof, the court shall find that such claim is or may become justly due from the estate, it shall order the executor or administrator to retain in his hands sufficient assets to satisfy the same."

The remainder of the section is set forth in the margin [Note 4], [Note 5].

At the time of the plaintifF s petition, no account had been filed or allowed. A first and final account was ordered by a probate judge on June 4, 1998 [Note 6]. Before the account was filed, the defendant successfully moved to dismiss the petition. A final account was filed in September, 1998. The account covered the period May 17, 1985 to December 28, 1988 and showed, as had been alleged in the defendant's previous filings, that all the assets had been distributed by December 28, 1988, approximately nine years before the plaintiff filed the petition pursuant to s. 13.

1. General Laws c. 197, s. 14. In allowing the motion to dismiss the plaintiff's petition under s. 13, the probate judge relied on s. 14. Ruling that the plaintiffs reliance on s. 13 was

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misplaced, she noted that s. 13 is merely a means of securing funds to cover an alleged debt and avoiding the short statute of limitations. For the adjudication of the validity of the debt, the governing statute is s. 14, not s. 13, and the plaintiff failed to bring his action within the period prescribed by s. 14, that is, one year after his claim became payable. Section 14 is set forth in the margin [Note 7]. The judge thus denied relief under s. 13 because

the plaintiff is unable to comply with the time requirements of s. 14.

The plaintiff argues he is not time barred because he had taken an appeal from the judge's denial of his s. 13 application, and s. 14 states that "if an appeal is taken from the decision of the probate court," a plaintiff has "one year after the final determination of the proceedings thereon." This construction of the statute is without merit. As explained in Forbes v. Harrington, 171 Mass. at 390-391, discussing Pub. Sts. 1882, c. 136, s. 13, which contained the same language now relied on by the plaintiff, "an action may be brought within one year after the claim becomes payable, or within one year after the final determination of the proceedings on appeal, against the executor or administrator, if they are ordered to retain assets, or upon the special bond, if one is given." The additional time thus applies only in the case where the executor or administrator appeals from an order of the Probate Court ordering retention of assets.

Although we reject the plaintiffs construction of s. 14, we need not consider whether the probate judge was correct in denying the application under s. 13, on the ground that the

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plaintiff's action appears not to be viable in another court [Note 8]. We base our decision on another ground. Hawthorne's, Inc. v. Warrenton Realty, Inc., 414 Mass. 200 , 210 n.6 (1993) (appellate court may affirm a judgment on grounds not relied on by the judge).

2. General Laws c. 197, s. 13. We conclude that the petition was correctly denied because the estate had been "fully administered" within the meaning of s. 13, and all the assets had been distributed. As pointed out in Forbes v. Harrington, 171 Mass. at 392, "if there were no . . . assets in fact in the hands of the administrator, either because none had been received or because all the assets in his hands had been lawfully paid to the persons entitled to them, it is difficult to see what remedy [a plaintiff has under the predecessors of s.s. 13 & 14] [Note 9].

More recently this court stated, -[s. 13] assumes that the executor continues to have assets in his possession at the time the creditor's cause of action accrues which the executor can be ordered to retain; it has no application to the situation in which, as in the present case[], all the assets have been distributed by the time the creditor's claim accrues." Cantor v. Newton, 4 Mass. App. Ct. 686 , 695 (1976) [Note 10].

The plaintiff does not contend that there are assets remaining in the estate, rather, he argues, that s. 13 applies even where there are no assets if the claim is presented to the probate court "before the estate is fully administered." He interprets the

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italicized language to mean before the final account of the administratrix has been allowed. As early as Forbes v. Harrington, 171 Mass. at 391, that claim was rejected in the context of these statutes.

"An order requiring an executor to retain in his hands a certain amount of the personal assets of course would be unavailing if there were no such assets. An estate in fact is often fully administered although the record of it may not appear in the Probate Court, and as the record of the Probate Court shows only what has been done, even when the final account as rendered is approved, the action approved necessarily must have taken place some time before the approval of it by the court [Note 11]."

Although the plaintiff cites Flannery v. Flannery, 429 Mass. 55 , in support of his position, there is nothing to suggest that the executor in that case did not hold assets of the estate. Indeed, the court noted, id. at 56, that the probate judge had ordered the legal representative to reserve sufficient assets to satisfy the claim and that the estate had not yet been settled.

3. Plaintiffs appeal from the allowance of the defendant's first and final account. The plaintifF s challenges to the account are without merit. Under our decision he is not entitled to proceed against the estate. Moreover, he received proper notice by publication under G. L. c. 206, s. 24, and had actual notice of the filing of the account. His constitutional objection to the statute was raised for the first time on appeal, and he has alleged nothing rising to the level of fraud or manifest error. See G. L. c. 206, s. 24.

4. Conclusion. The order dismissing the plaintifFs petition to retain assets is affirmed. The order allowing the first and final account of the administratrix is affirmed.

So ordered.