MARGOT XARRAS, trustee, [Note 1] vs. JAMES T. MCLAUGHLIN, administrator, [Note 2] & others. [Note 3]

DOERFER, J. Herbert Armstrong, one of the parties against whom the complaint in this case was filed in the Superior Court on February 3, 1999, had, unbeknownst to the plaintiff, died on July 4, 1998. [Note 4] There was no personal representative of Armstrong's

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estate at the time the complaint was filed. The plaintiff became aware of the decedent's death some months later. [Note 5]

By the time James T. McLaughlin was appointed administrator of Armstrong's estate on June 10, 1999, and the plaintiff succeeded in amending the complaint to add the administrator as a party, the short one-year statute of limitations under G. L. c. 197, § 9, requiring a creditor to commence an action against an estate within one year of the date of death, had expired.

The administrator filed a motion for summary judgment that was allowed. [Note 6] L.J. Insurance Agency (L.J.) and Utica Mutual Insurance Company (Utica) then moved for summary judgment. Their motion was also allowed and judgment entered for all the defendants. We conclude that the amendment of the complaint adding the administrator as a party related back to a time prior to the expiration of the short statute of limitations, that there was a viable action pending against other parties at that time, and thus that the action should be allowed to proceed against all parties on the merits.

Discussion. Any claims against an estate must be brought by a creditor within one year of the date of death of the deceased. G. L. c. 197, § 9. See Cross v. Hewitt, 52 Mass. App. Ct. 538 , 540 (2001). The problem here arises from the legal doctrine that a legal proceeding against a deceased person is a nullity. See Chandler v. Dunlop, 311 Mass. 1 , 5 (1942). Compare Holmquist v. Starr, 402 Mass. 92 (1988) (narrowing the applicability of the nullity doctrine). Thus the filing of a claim, ordinarily

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sufficient to toll a statute of limitations, does not have that effect if such a proceeding is a nullity and void from the beginning. See Nutter v. Woodard, 34 Mass. App. Ct. 596 , 596 (1993). [Note 7]

However, if other parties (not dead) are named in the original complaint one cannot say that the proceeding is a nullity. Touzin v. Smith, 6 Mass. App. Ct. 641 , 644 (1978). Contrast Chandler v. Dunlop, 311 Mass. at 8 (applying the nullity doctrine where the only defendant named in the original action was dead). There is certainly an absence of the deceased as a party. But the claim against the deceased may be pursued by a motion to amend the complaint to substitute the personal representative of his estate as a party. See Touzin v. Smith, supra at 645 (amendment to make the executrix a party was properly allowed where the action had commenced against two other parties before the one-year statute of limitations expired); Nutter v. Woodard, supra at 600 (If "some other person in addition to [the deceased defendant] had been named as a defendant, there would be no question that a late amendment to substitute [the deceased defendant's] estate would have related back to the date of the initial filing"). "[T]he broad powers of amendment characteristic of our practice permit the addition of a defendant which relates back to the commencement of an action, timely brought against other defendants, although an independent action against that defendant would have been barred by a statute of limitations." Touzin v. Smith, supra at 644. See G. L. c. 231, § 51. See generally Ramirez v. Graham, 64 Mass. App. Ct. 573 , 577 (2005), quoting from National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663 , 671 (2000) ("Massachusetts practice is more liberal than other jurisdictions in allowing amendments adding or substituting defendants after expiration of a period of limitations").

Here the plaintiff, who had not known of the decedent's death, filed a timely complaint against three defendants: the

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decedent, L.J., and Utica. L.J. and Utica filed timely answers in response to the original complaint. As this case was filed against two viable defendants in addition to the decedent, the original complaint was not rendered a nullity. [Note 8] The amendment substituting the administrator for the decedent thus related back to the date of the initial filing of the complaint for purposes of the statute of limitations.

We further observe that the administrator was not (and does not claim to be) prejudiced by the amendment of the complaint to include him as a defendant. See Nutter v. Woodard, 34 Mass. App. Ct. at 600; White v. Helmuth, 45 Mass. App. Ct. 634 , 635 & n.5 (1998); Cross v. Hewitt, 52 Mass. App. Ct. at 542. The administrator was aware of the pending complaint against the decedent. See Nutter v. Woodard, supra at 599. Contrast Ramirez v. Graham, supra at 579 ("The new defendants had no knowledge that they were destined to become participants in the action . . ."). Moreover, the administrator (prior to his appointment) requested and received from plaintiff's counsel, as a courtesy, time to extend the filing of the answer. [Note 9] Later, the plaintiff (through counsel) also assented to a motion to remove a default entered against the decedent. The administrator cannot

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claim a defense of the statute of limitations when he has been involved in running down the clock resulting in further delay. Cf. Turner v. Minasian, 358 Mass. 425 , 427 (1970) (no allegation that the defendant administrator delayed unduly in filing his appearance).

Conclusion. Since the nullity doctrine is inapplicable to the facts of this case as there were other viable defendants and claims, the original complaint remained valid. The amendment of that complaint, which was properly allowed, related back to the initial filing and is thus considered to be timely made. The defendants were not entitled to summary judgment.

Judgment reversed.