39 Mass. App. Ct. 651 | Mass. App. Ct. | 1996
Adeline Fuoco, age ninety-three, died on April 28, 1989, survived by ten children. In 1986, she transferred a parcel of real estate to her son Joseph. In 1991, Stephen Howe, the administrator of her estate, sought to set aside the deed on the ground that Adeline had been incompetent at the time of execution. After a trial, a probate judge declared the deed null and void.
1. Dismissal of Kelly Dunshee as a party. Howe moved to dismiss Dunshee as a defendant on the ground that she was “not a[n] heir at law of the . . . decedent,” Adeline Fuoco.
Dunshee argues that her interests differ from those of the administrator of Joseph’s estate, and that she was denied the opportunity to participate in both pretrial discovery and in the trial itself. We need not consider whether her interest differs from Johnston’s as it is established under Massachusetts law that an administrator, unless given special authority, is legally a stranger to real property, and an action for a conveyance will normally not lie against him. Newhall, Settlement of Estates § 9.10 (Belknap rev. 5th ed. 1994). Thus in Roper v. Murphy, 317 Mass. 176, 178 (1944), an action brought against the administrator of an estate to compel the conveyance of a parcel of real estate, the Supreme Judicial Court pointed out that upon a decedent’s death, title of record passes to his heirs and not to his administrator. The court held that “[a]ny rights that the statutory heirs of the intestate or those claiming under him might have in the real estate involved could not be adjudicated properly in this proceeding to which they have not been made parties.” Id. at 178. It follows that Dunshee should not have been dismissed as a party. For this reason, the judgment is vacated and the case remanded to the Probate Court for proceedings in which Dunshee can participate.
2. Statute of limitations. Dunshee and Johnston also claim that their motion to dismiss Howe’s action should have been allowed because it is barred by both G. L. c. 197, § 9, and by G. L. c. 260, § 2A. The claim is without merit. Section 9 of G. L. c. 197
The other statute relied on in Dunshee’s motion to dismiss, § 2A of G. L. c. 260,
“If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced within the time hereinbefore limited after the disability is removed.”
Howe’s complaint alleged that Adeline was “blind, of unsound mind, and not competent to deal with or dispose of her property” at the time she executed the deed to Joseph. The allegations, if proven, come within the term “incapacitated by reason of mental illness.” See Hornig v. Hornig, 6 Mass. App. Ct. 109, 111 (1978). Contrary to Dunshee’s contention, G. L. c. 260, § 10,
3. Standing of executor or administrator. Johnston and Dunshee also claim that Howe, as executor of Adeline’s estate, lacks standing to bring this action to set aside the deed to Joseph. They maintain that since title to real estate descends immediately to Adeline’s heirs at law or to her devisees,
“shall . . . extend to the specific enforcement of reconveyance by persons alleged to be improperly holding or retaining property belonging to the estate of a deceased person . . . and to the cancellation of deeds, releases or other conveyances or acquittances executed by a person since deceased ... on the petition of the executor, ad*656 ministrator, guardian, conservator or receiver, as the case may be." (Emphasis supplied).
We are aware that, despite the statute, the quoted clause of which was inserted by St. 1929, c. 342, § 2, there is Massachusetts case law denying the right of an administrator to seek reconveyance. DeAngelis v. Palladino, 318 Mass. 251, 252 (1945) (administrator cannot bring action for reconveyance). See Medinsky v. Premium Cut Beef Co., 320 Mass. 22, 25 (1946) (administrator only entitled to rents prior to decedent’s death; heirs entitled to them thereafter); Ryan v. McManus, 323 Mass. 221, 225, 231-232 (1948) (administrator lacks standing to seek conveyance).
These cases, however, do not mention the statute, and it may not have been brought to the court’s attention. The wording of the statute suggests that Howe, as the administrator or executor, of Adeline’s estate, is a proper party to bring this equitable action to set aside the deed under G. L. c. 204, § 1. See 1 Newhall Settlement of Estates § 2:14, at 90 (Belknap rev. 5th ed. 1994). But see §§ 9.10 and 11.9. In any event, many, if not all of Adeline’s heirs were parties to the action (as defendants) and were in effect joining in Howe’s complaint. In such circumstances, the requisite parties were before the court. On remand, by amendment, the alignment of the parties can be changed and Adeline’s heirs substituted as plaintiffs. See Ryan v. McManus, 323 Mass, at 232. See also Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 627 (1977) (amendment may be allowed to bring in parties who would have been time-barred from commencing an independent action.)
4. Miscellaneous. Dunshee and Johnston also raise several evidentiary issues which we decline to reach as they may not arise in the course of a new trial. The plaintiff will, of course, have the burden of proving that Adeline was incompetent to make the transfer and that such incompetency continued for a sufficiently long period that the present action is not barred.
5. Conclusion. Because Dunshee was improperly dismissed from the case prior to trial, the judgment of the Probate
So ordered.
Some of the relevant findings of the judge were: “Adeline Fuoco’s mental condition was not sound and her judgment was impaired. On March 19, 1986, Adeline Fuoco was legally blind, did not sign the alleged deed, nor did she ask someone else to sign the Deed at her direction. In addition, the notarization occurred outside her hospital room and no credible evidence was presented to demonstrate the notary even knew the signature was not Adeline Fuoco’s or that . . . [her signature was authorized].
“The Court finds the conveyance from Adeline Fuoco to Joseph Fuoco, Jr. fraudulent. Adeline Fuoco was elderly, sick and infirm, but these factors would not prevent her from conveying her real estate. However, in this case, Adeline Fuoco was legally blind and ‘confused.’ She did not sign the ‘Deed’ in question nor authorize anyone else to sign it. Clearly, she did not possess the requisite understanding for conveyancing her real estate on March 19, 1986.”
The judge’s findings of fact after trial stated that: “On . . . June 29, 1993, this Court denied [Howe’s] Motion in this action to . .. dismiss[ ] as to Kelly Dunshee. Consequently, Kelly Dunshee, the only heir to her late father’s estate, is a Respondent in this action.” This finding was erroneous in view of the December 8, 1993 allowance of Howe’s renewed motion to dismiss.
General Laws c. 197, § 9(a), as inserted by St. 1989, .c. 329, § 5, provides that “an executor or administrator shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within one year after the date of death of the deceased.”
General Laws c. 260, § 2A, as amended by St. 1973, c. 777, § 1, provides that “actions of tort, actions of contract to recover for personal injuries, arid actions of replevin, shall be commenced only within three years after the cause of action accrues.”
General Laws c. 260, § 10, in relevant part provides:
“If a person entitled to bring or liable to any action before mentioned dies before the expiration of the time hereinbefore limited, or within thirty days after the expiration of said time, and the cause of action by law survives, the action may be commenced by the executor or administrator at any time within the period within which the deceased might have brought the action or within two years after his giving bond for the discharge of his trust . . . .”
It seems likely that the judge was referring to the answers submitted by the defendants Joanne F. Carey, Elizabeth Ann Allendorf, and Frank Fuoco. Each answer was signed by the individual defendant and each stated that Adeline was of unsound mind and not competent to deal with her property at the time she signed the deed to Joseph.
The will of Adeline is not in the record but the list of the defendants named by Howe suggests that if she left a will, she left the real estate to all her children.