Home JOSEPH R. ZILEWICZ & another vs. RICHARD L. TRUEHART & others.

360 Mass. 862

December 8, 1971

This bill in equity alleges several different causes of action against Richard and Florence Truehart (defendants), adjoining property owners of the plaintiffs, and against the building inspector of the town of Easthampton. The demurrer of the Trueharts to the entire bill on the ground (among others) of multifariousness was sustained and a final decree was entered dismissing the bill as to those two defendants. The plaintiffs appealed from the final decree. "There is no inflexible rule by which to determine whether a bill is multifarious. Whether objection shall be sustained on this ground must be decided largely by the circumstances of each case." Spear v. H. V. Greene Co. 246 Mass. 259 , 269, and cases cited. Kalman v. Kalman, 348 Mass. 772 . An examination of the allegations of this bill convinces us that the demurrer was rightly sustained. The bill alleged that the defendants' property was impressed with restrictive covenants in favor of the plaintiffs which were being violated, that the defendants were making use of their property in violation of both the building laws and the zoning by-laws of the town of Easthampton, that the defendants had repeatedly trespassed on the plaintiffs' land and that the building inspector had improperly granted a building permit to the defendants. The joinder in a single bill of allegations of building law violations, zoning by-law violations, restrictive covenant violations and repeated trespasses raises issues "too diverse and complex to be dealt with in a single proceeding efficiently and with fairness to the defendants." Peterson v. Hopson, 306 Mass. 597 , 610. Shopper's Package Store, Inc. v. Sandler, 356 Mass. 4 , 6.

Decree affirmed with costs of appeal.

Home JULIA A. RUSSO vs. JOSEPHINE INZIRILLO & others.

360 Mass. 862

December 8, 1971

This is an appeal from a decree of the Probate Court dismissing a petition in equity by Julia A. Russo praying that the respondents be ordered to convey to the petitioner their interest in a parcel of real estate owned by Michael M. Russo, the petitioner's husband, at the time of his death. The judge filed a report of material facts and the evidence was not reported. After several conferences where all the parties were represented by counsel the respondents, heirs at law of Michael M. Russo, for consideration paid, gave to the petitioner releases on probate form A. C. 147 "of all claims which they might have as heirs at law of the deceased." The inventory of the estate of Michael M. Russo included a parcel of real estate. The petitioner argues that it was the intention of the parties to include the real estate as well as the personal property when the releases were executed by the respondents. In dismissing the petition the probate judge found that it was not the intention of the parties to include the real estate in the releases. There

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were no subsidiary findings by the judge as to the reasons for his decision. There was no error. The rule in Massachusetts is that title to realty of a deceased intestate vests immediately in the heirs and no distribution is required. Lynde v. Vose, 326 Mass. 621 , 623. Shrewsbury v. Murphy, 333 Mass. 290 , 292. It does not pass to the administrator who is without power to convey real estate except by special authorization and license of the Probate Court. Roper v. Murphy, 317 Mass. 176 , 178. The documents executed by the respondents and given to Julia Russo, administratrix, unequivocally released and discharged debts and liabilities on account of the estate of Michael M. Russo. The releases were executed on probate form A. C. 147 generally used for the release of personal property. No mention is made of realty in the releases. The mere use of words "heir at law" in the releases cannot be construed as an intent to include realty. The words have reference to those inheriting personal as well as real property. Brandeis v. Atkins, 204 Mass. 471 , 474-475.

Decree affirmed.