DEPARTMENT OF PUBLIC WELFARE vs. HENRY A. ANDERSON, executor (and a companion case between the same parties).

LIACOS, J. The Department of Public Welfare (department) seeks to recover from the estate of Aini Anderson, under G. L. c. 118E, Section 16, the cost of medical assistance provided her during the last five and one-half years of her life. For this purpose the department presented a claim to the executor of the estate and also commenced an action

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at law now before the Superior Court. The executor declined to pay the claim. The Probate Court allowed the first and final account, which made no provision for such payment, over the objection of the department. The department claimed an appeal from that judgment and applied for direct appellate review, which we have allowed. Meanwhile, the action was still pending in the Superior Court. After the Probate Court judge's decision, the Superior Court judge reported several questions of law. The appeal and report have been consolidated for hearing.

Both the Probate Court judgment and the report by the Superior Court rest on effectively identical stipulations of fact. The agreed facts are: In January, 1967, the testatrix (Aini Anderson) suffered a stroke and thereafter was confined to a nursing home. On August 4, 1967, at age seventy-five, she applied for medical assistance benefits, which the department provided from that date until the date of her death, December 23, 1972. The total amount of the benefits provided was $20,155.81. After the testatrix's death, the Probate Court appointed her son, Henry A. Anderson, and his wife, Jessie B. Anderson, executors and approved their bond without sureties on February 8, 1973. On April 7, 1973, Jessie B. Anderson died.

At the time of the testatrix's death, her sole asset was a house located at 15 Jasper Street, Beverly, Massachusetts, which the executor duly sold for $22,900 on March 21, 1973.

General Laws c. 118E, Section 16, inserted by St. 1969, c. 800, Section 1, approved August 24, 1969, and effective ninety days thereafter, provides: "There shall be no adjustment or recovery of medical assistance correctly paid, except from the estate of an individual who was sixty-five years of age or older when he received such assistance, and then only after the death of his surviving spouse, if any, and only at a time when he has no surviving child who is under age twenty-one or is blind or permanently and totally disabled. In no event shall any action to recover be brought except with the written approval of the department."

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On January 9, 1973, the Beverly welfare service office sent a memorandum to the division of legal services for the department captioned, "Recovery from Estate of Aini Anderson, b. 8/5/92." On March 26, 1973, the then Commissioner of the Department of Public Welfare transmitted to welfare service offices medical assistance letter 71 instructing workers that "[w]henever a recovery [of medical assistance funds] is possible the worker shall complete a Probate Information Form (LEG-2) and mail it to the Legal Division .... This referral must be made promptly because time for Probate Court action is limited." No such completed form appeared in the record. On December 14, 1973, ten months after the executor gave bond, the department filed a notice of claim in the amount of $20,155.81 with the executor and Probate Court for medical assistance provided the testatrix. On that same day, it also commenced an action on its claim in the Municipal Court of the City of Boston, which was then removed to the Superior Court in Suffolk County by the defendant executor.

The executor refused the department's claim on the grounds that neither the notice of claim nor the commencement of the civil action occurred before the expiration of the nine-month limitation set by G. L. c. 197, Section 9. [Note 1] He thus proceeded to apply the assets of the estate to the

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payment of debts, expenses, fees of administration, and distribution to the heirs. On April 27, 1977, the executor moved in Probate Court for the allowance of his first and final account. After receiving proper notice, the department filed an objection, and argued against the allowance of the account. The Probate Court judge nevertheless allowed the account. On September 1, 1977, the department filed a notice of appeal maintaining that the judge erred in allowing the final account while the department's claim was pending in the Superior Court.

Thereafter, the Superior Court judge reported the following five questions to the Appeals Court: 1. Whether the Essex Probate judgment is res judicata of the issues before this court; 2. Whether G. L. c. 206, Sections 22 and 24, require a finding for the defendant; 3. Whether the department has complied with G. L. c. 118E, Section 16; 4. Whether the instant action is barred by the provisions of G. L. c. 197, Section 9, the short statute of limitations in favor of estates; 5. Whether the department can recover medical assistance paid prior to enactment of G. L. c. 118E, Section 16.

The primary question before us is whether the short statute of limitations bars the department's claim. The department argues that the obligation it holds is not subject to G. L. c. 197, Section 9. Alternatively, it maintains that the short statute does not apply to actions brought by the Commonwealth unless the Legislature has indicated that it intends for the Commonwealth to be so bound. Since G. L. c. 118E, Section 16, does not explicitly make claims brought thereunder subject to G. L. c. 197, Section 9, the department argues that the statute does not bar the claim. We are unpersuaded by either argument and therefore answer question 4 affirmatively. Because this holding permits affirmance of the Probate Court's judgment and dismissal of the proceeding in the Superior Court, [Note 2] resolution

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of the other questions reported is unnecessary. [Note 3]

1. General Laws c. 197, Section 9, as appearing in St. 1972, c. 256, the short statute of limitations, provides in part that "an executor or administrator shall not be held to answer to an action by a creditor of the deceased which is not commenced within nine months from the time of his giving bond for the performance of his trust, or to such an action which is commenced within said nine months unless before the expiration thereof the writ in such action

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has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate." The obvious purpose of this provision is to expedite the settlement of estates and thereby protect the substantial interests of creditors as well as distributees. See, e.g., Downey v. Union Trust Co., 312 Mass. 405, 408 (1942).

In construing the scope of the short statute, this court has held that the term "creditor of the deceased" applies only to claimants holding obligations that arose while the decedent was alive. The term does not reach so called creditors of the estate, namely claimants holding obligations that arise after death and are enforceable only

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against the decedent's personal representative. Compare Milford v. Casamassa, 339 Mass. 702 (1959), and Dallinger v. Davis, 149 Mass. 62 (1889), with Levin v. Commissioner of Corps. & Taxation, 349 Mass. 20 (1965), Bartlett v. Tufts, 241 Mass. 96 (1922), and Rich v. Tuckerman, 121 Mass. 222 (1876). These latter obligations include, for example, taxes on income received by the estate after the decedent's death, taxes on property held by the estate, Dallinger v. Davis, supra, and debts and liabilities incurred in the course of settling the estate. See Geldert v. Usher, 248 Mass. 323, 326 (1924). See generally 1 G. Newhall, Settlement of Estates Section 189, at 555 (4th ed. 1958). Creditors of the estate other than the Commonwealth must enforce their claims within the period set by G. L. c. 260, Section 11. [Note 4]

The distinction between the two classes of creditors has had the following consequence: if a claimant is a creditor of the decedent, then the short statute applies unless a clear statement to the contrary appears in a statutory provision on which the claimant bases its claim. Cf. Levin v. Commissioner of Corps. & Taxation, supra. If, on the other hand, a claimant is a creditor of the estate, then the short statute does not apply unless a clear statement to the contrary appears in the provision enabling recovery.

The authority of the Commonwealth to recover c. 118E assistance arises from the operation of Section 16. [Note 5] Section 16

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contains no provision relevant to the applicability of G. L. c. 197, Section 9, nor does it clearly indicate whether the obligation held by the Commonwealth is of the deceased or of the estate. Nevertheless, we conclude that the department stands as a creditor of the deceased for the reasons here stated.

Unlike income received after death or services provided a decedent's estate, the benefit of c. 118E funds is given while the recipient is alive. Only in Milford v. Casamassa, supra, have we found that, even though the events giving rise to the obligation had occurred before the decedent's death, the obligation was a debt of the estate. There we considered the applicability of the short statute to recovery under G. L. c. 59, Section 5A (since repealed by St. 1965, c. 620, Section 3), of relieved property taxes. [Note 6] Section 5A, as amended by St. 1948, c. 541, read: "In the event that a person is relieved of taxation [under the appropriate exceptions], upon his death his estate, to the extent that it exceeds his debts, ... shall be chargeable ...." The section also charged interest on the relieved amount, to run only from the death of the taxpayer. We noted that the interest provision as well as the words "upon his death his estate ... shall be chargeable" suggested that the obligation arose on death. Moreover, the relationship of Section 5 to Section 5A implied that the original tax "never came into being during the decedent's life either because it was never assessed or because ... it was extinguished by abatement." Casamassa, supra at 706. Most significant,

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however, the language of Section 5A specifically distinguished the sum to be recovered from the other debts of the deceased, making the former contingent on the amount by which the estate exceeded the latter. Lastly, Section 5A specifically provided that a "collector shall present the claim for payment in the same manner as provided for presentation of claims of creditors of the estate and have like power to bring suit thereon " (emphasis supplied). Here, neither the words nor the structure of the c. 118E medical assistance program suggests that the Legislature intended the creditor to have the status of creditor of the estate.

Section 16 establishes four circumstances which must exist before the department may recover c. 118E funds. First, the individuals subject to the recovery clause must have been age sixty-five or older when they received assistance. Second, the department may recover only from the estate of such a recipient, or in other words only on the death of the recipient. Third, the department must await the death of the surviving spouse, if any. Fourth, it must await the death or majority of any surviving child who is under age twenty-one, or the death of a surviving child who is blind or permanently and totally disabled. Although the latter three circumstances may come into being on or after the death of the recipient, none is a condition precedent to the existence of the department's authority to recover. Each refers to an event certain to occur and thus they merely establish the time when the department's right to recover ripens. [Note 7] See Restatement (Second) of Contracts Section 250, Comment b (Tent. Draft Nos. 1-7, 1973). The apparent purpose of such language is simply to avoid imposition of an obligation to repay while the

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recipient or certain members of his family may yet require governmental assistance, and not to prevent the obligation from ever coming into existence. In contrast, not all recipients of medical assistance will be age sixty-five or older when they receive aid. Consequently, the first condition listed is the only condition precedent to the existence of the obligation to repay. [Note 8] Given that the department and the recipient will know whether this condition has been satisfied on the granting of aid, and that no language in Section 16 distinguishes the statutory obligation from other debts of the deceased, the obligation here is distinct from that at issue in Casamassa. The scheme here is similar to contracts between private parties in which the creditor's right of enforcement matures only on or after the death of the debtor. See 1 G. Newhall, supra at Sections 180, 181. Even when the right to recover does not accrue until after the period set by G. L. c. 197, Section 9, the debt still may be a debt of the deceased if it arose while the debtor was alive. [Note 9] See Gilman v. Taylor, 266 Mass. 346, 349 (1929).

2. We, as well as other jurisdictions, long have held that the Federal government and the States are not subject to statutes of limitation unless they have expressed their consent to be so bound. See Boston v. Nielsen, 305 Mass. 429, 430 (1940); 51 Am. Jur. 2d Limitation of Actions Sections 409-421 (1970). Since the department is an agency of

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the Commonwealth, G. L. c. 18, Section 1, we treat the claim in issue as the claim of the Commonwealth. We must therefore determine whether the immunity enjoyed by the Commonwealth from statutes of limitation includes immunity from the constraints of G. L. c. 197, Section 9.

We note initially that we have never directly addressed this question. In all the cases in which we applied the short statute to bar governmental claims, statutory consent was at least arguably present. See Levin v. Commissioner of Corps. & Taxation, 349 Mass. 20 (1965); Bartlett v. Tufts, 241 Mass. 96 (1922); Rich v. Tuckerman, 121 Mass. 222 (1876). [Note 10] Moreover, in those cases in which we held that G. L. c. 197, Section 9, did not bar the governmental claim we found either that the government was not a creditor of the deceased, see Milford v. Casamassa, supra; Dallinger v. Davis, supra, or that the Legislature had expressed an intent that the bar not apply, see Levin v. Commissioner of Corps. & Taxation, supra. The department contends that in Haverhill v. Porter, 333 Mass. 594 (1956), we refused to apply the short statute solely because the provision on which the city based its claim did not contain an expression of consent to be bound by G. L. c. 197, Section 9. There the city sought to recover old age assistance

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provided the testatrix under the former c. 118A. The recovery provision, Section 4A, expressly provided that claims against the recipient's estate were subject to the short statute. Since the city began proceedings after the expiration of the statutory period, it brought a bill in equity under G. L. c. 197, Section 10. [Note 11] The court refused the city judgment but nevertheless held that a lien created under G. L. c. 118A, Section 4, on real estate owned by the testatrix was enforceable. We noted that no language in Section 4 subjected enforcement of c. 118A liens to G. L. c. 197, Section 9, and declined to read the limitation present in Section 4A into Section 4. That decision does not, however, control the question before us since the city as a lien holder was not a creditor otherwise subject to G. L. c. 197, Section 9. See New England Trust Co. v. Spaulding, 310 Mass. 424, 430 (1941); Stoneham Five Cents Savs. Bank v. Johnson, 295 Mass. 390, 395 (1936). Lastly, our decision holding that the Federal government is not subject to the short statute, Taylor v. United States, 324 Mass. 639 (1949), cert. denied, 338 U.S. 948 (1950), is distinguishable from the present situation. That decision rested on the Supreme Court's decision in United States v. Summerlin, 310 U.S. 414 (1940), in which the Court considered whether the Florida nonclaim statute, a provision which like G. L. c. 197, Section 9, voids the claims of creditors of the deceased if not brought within a fixed period, applied to a Federal agency. The Court held that the States have no power to void the claims of the Federal government, a principle inapplicable to a case in which the creditor is the State government. We therefore turn to the question whether the Massachusetts statute, G. L. c. 197, Section 9, applies to the Commonwealth when the Commonwealth is a creditor of the deceased.

Some jurisdictions consider nonclaim statutes to be essentially statutes of limitation and hold that such statutes do not bar governmental claims unless provision for

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them to do so is made by statute. See, e.g., State Dept. of Pub. Welfare v. O'Brien, 200 Tenn. 475, 477 (1956); State v. Stone, 271 S.W.2d 741 (Tex. Civ. App. 1954). Some of our cases imply that this court views G. L. c. 197, Section 9, similarly. See, e.g., Taylor v. United States, supra at 642. Nevertheless we note that a growing majority of jurisdictions hold that such statutes are to be viewed as nonclaim statutes, distinct from standard statutes of limitation, and thus apply to State claims even absent an expression of intent by the Legislature to be so bound. See State v. Goldfarb, 160 Conn. 320 (1971); In re Bird's Estate, 410 Ill. 390 (1951); Bahr v. Zahm, 219 Ind. 297 (1941); Donnally v. Montgomery Welfare Bd., 200 Md. 534 (1952); State v. Evans, 143 Wash. 449 (1927). See generally Annot., 34 A.L.R.2d 1003 (1954). These jurisdictions find the distinction to be basic for the following reasons. Statutes of limitations generally are viewed as pertaining to remedies, not the creation of rights. They constitute affirmative defenses which if not pleaded are deemed waived. On the other hand, nonclaim statutes impose a condition precedent to the right of recovery. Failure to satisfy the requirement of a condition precedent to recovery cannot be waived, and failure to comply voids the claim. If a State is not otherwise exempt from satisfying a condition precedent to a right of action, there is no reason to exempt it from the operation of nonclaim statutes.

We agree with this reasoning and note that in the Commonwealth the requirements of the short statute are also absolute, see 1 G. Newhall, supra Section 189, at 547-548, and may not be waived, see Nochemson v. Aronson, 279 Mass. 278, 282 (1932). But cf. Kofinke v. Maranhas, 375 Mass. 141, 143-144 (1978) (executor or administrator may waive the prohibition against commencing an action within the first three months of appointment). Accordingly, we adopt the majority rule relative to the application of non-claim statutes to State claims and hold that the department's claim is barred by G. L. c. 197, Section 9.

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3. Finally, we note that the result we reach today gives effect to the purposes of both G. L. c. 118E, Section 16, and G. L. c. 197, Section 9. In many instances the department's right to recover will accrue on the recipient's death (e.g., no surviving spouse, no surviving child under twenty-one, blind or permanently and totally disabled). In such circumstances, there is no need to delay the settlement of an estate since the statutory period allows the department adequate time to present its claim for recovery or commence an action. We note that, in the case at bar, the department had initiated the administrative review of recovery possibilities before the executor had given bond. In those situations in which the department's authority to recover will not accrue until after the death of the recipient, our decision would permit the department to request an extension under G. L. c. 197, Section 9, [Note 12] or present its claim under G. L. c. 197, Section 13.

In sum, we answer question 4 affirmatively and find it unnecessary to resolve the other questions reported. We affirm the judgment of the Probate Court and remand the Superior Court proceeding to that court for entry of judgment in accordance with this opinion.

So ordered.