This is аn action of contract by the administratrix of the estate of Alphonse Krol against the administratrix of the еstate of John Krol. The plaintiff contends that the intestates, John Krol and Alphonse Krol (father and son) entеred into an oral agreement *314 whereby certain services rendered by Alphonse for his father would be сompensated for by a provision in the will of the father. The father failed to make such a provision in his will аnd the plaintiff seeks recovery for the fair value of the services rendered by her intestate.
The jury returnеd a verdict for the plaintiff. The case is here on the plaintiff’s exception to the allowancе by the trial judge of the defendant’s motion for the entry of a verdict under leave reserved.
The evidence warranted jury findings that Alphonse did render such services for his father under such an oral agreement until May 1, 1950, when the services were terminated by Alphonse because of his illness. Alphonse died on June 2, 1954. John Krol died on August 28, 1965, without making рrovision in his will as agreed.
The plaintiff was appointed administratrix of the estate of Alphonse Krol on Sеptember 20, 1965. The defendant was appointed administratrix of the estate of John Krol on November 24, 1965. This action was begun by writ dated June 8, 1966.
The defendant’s principal contentions are that the action is barred by the statute of frauds; that Alphonse broke the oral agreement when he discontinued his services to his father on Mаy 1,1950; that the suit is barred by the statute of limitations; that Alphonse Krol’s cause of action did not survive his death and thus it could not be enforced by the administratrix of his estate.
1. The law is clear that the action is not barred by the statutе of frauds.
Shopneck
v.
Rosenbloom,
2. We cannot agree that Alphonse broke the agreement by terminating his services on May 1, 1950, because of his illness. The jury could have found that because of physical disability he was unable to continue with thе work and, therefore, there was no wilful and unjustifiable departure by Alphonse from the terms of the agreement.
Jackson
v.
Boston Safe Deposit & Trust Co.
3. We reject the defendant’s contention that the action (commenced on June 8, 1966) is barred by the stаtute of limitations (G. L. c. 260, § 2, as appearing in St. 1948, c. 274, § 1). The short answer to this contention is that the cause of action did not accrue until the oral agreement was broken by the defendant’s intestate by his failure to provide in his will for the payment of Alphonse’s services.
Shopneck
v.
Rosenbloom,
"It is an underlying principle in the application of the statute of limitations that before it can begin to run there must be some one in existence by whоm, and a different person against whom, the claim may be enforced.”
Bremer
v.
Williams,
In an action by a creditor against a widow to account for the premiums paid by her husband on a life insurance policy, this court held that the cause of action did not accrue and the statute of limitations did not begin to run until the death of the husband.
York
v.
Flaherty,
4. Thе right of action survived the death of Alphonse Krol. “The general rule is that a right of action founded upon a contract survives the person entitled in his lifetime to sue, so that the right passes upon his death to his persоnal representative.”
2
Drewen
v.
Bank
*316
of Manhattan Co.
31 N. J. 110, 118, citing Schouler, Executors, § 277 (3d ed.). G. L. c. 228, § 1. See
Price
v.
Holmes,
The cases relied on by the defendant are clearly distinguishable. They involve actions brought under the death statute. “The [death] statute evidenced an intеntion to set a definite limit to the time within which an action might be brought, regardless of the situation of the estate оf the deceased with reference to administration. ... As this statute limited
right as well as remedy,
the principle laid down in
Bremer
v.
Williams,
The plaintiff’s exceptions are sustained and judgment is to be entered on the verdict returned by the jury.
So ordered.
Notes
In the Shopneck case at p. 84, we stated: “[T]he cause of action did not accrue . . . until the dеath of the defendant’s testatrix . . . without having . . . provided for its repayment by will.”
The fact that, in the instant case, the sоn predeceased the father does not change this rule. The debt remained after the son’s death and became collectible at the father’s death.