The plaintiff, Barbara Telesetsky, filed a notice of claim against the defendants, Ann Wight and Stephen Wight, coadministrators of the estate of Philip D. Wight. The defendants sent a notice of disallowance of the claim, and the plaintiff filed a petition for payment. A judge of the Probate- Court ruled on a submitted statement of agreed facts that the defendants properly disallowed the claim and dismissed thе petition. The plaintiff filed a notice of appeal, and we allowed her application for direct appellate review. We are asked to interpret some of the provisions of G. L. c. 197, § 9 (1984 ed.). This statute governs the presentation of claims against an estate of a decedent and the manner by which they are allowed and disallowed.
The parties agreed to the following material facts which we now summarize. Philip D. Wight died on June 10, 1982. The defendants, Ann Wight and Stephen Wight, were appointed coadministrators of the estate; their bonds were approved on October 8, 1982. On January 27, 1983, the plaintiff filed a notice of claim against the estate in the Probate and Family Court for Middlesex County, and mailed copies to the coadministrators. The claim stated that the estatе was indebted to the plaintiff in the sum of “$12,500 or a trust fund, plus furniture.”
An administrator has sixty days after the four-month period which runs from the date of the approval of the bond to act on a claim. The administrators did not act on the claim during this sixty-day period. Their failure to act resulted in the allowance of the creditor’s claim.
2
By a letter dated April 28, 1983,
We agree that an administrator properly may change the allowance of a claim to a disallowance of that claim after the sixth month, but conclude that, to be effective, the notice of disallowance must contain a warning of the impending bar for failure to commence suit within sixty days of the notice of disallowance. The administrators failed to include the warning in the notice. See note 3, supra. We conclude, therefore, that the notice of disallowance was ineffective. We conclude, further, that in thе circumstances of this case the plaintiff is not entitled to have her claim treated as automatically allowed. The plaintiff, however, should be allowed to initiate legal proceedings in a court of proper jurisdiction to prove her claim, provided she initiates the action within sixty days after the entry of the rescript in the Probate Court.
Central to the resolution of this controversy is the interpretation of G. L. c. 197, § 9. The text must be afforded its plain meaning when it is clear and unambiguous.
Bronstein
v.
Prudential Ins. Co. of Am.,
In 1976, the Legislature rewrote G. L. c. 197, § 9.
7
This amendment was part of an omnibus probate reform bill adapted from the Uniform Probаte Code (U.P.C.) and jointly filed by the Boston Bar Association and the Massachusetts Bar Association.
8
The drafters of the bill proposed the changes for the obvious purpose of expediting the probate process and the settlement of estates. See Young, Probate Change, 20 B.B.J. 6 (Dec., 1976);
Sprague
v.
O’Connell,
General Laws c. 197, § 9, provides two separate methods for creditors to present claims against an estate. The statute retains the traditional adversary method of instituting an action at law against the estate in the Superior Court or District Court.
The amendment of § 9 by St. 1976, c. 515, § 15, created an alternative system to operate concurrently with the adversary method. A creditor may nоw present a claim directly to the administrator within four months after the approval of his bond. Receipt of the claim by the administrator tolls the nonclaim statute and shifts the burden to act to him. G. L. c. 197, § 9, first par. (a), second par. Under the provisions of § 9, third par., the administrator may notify the creditor that the claim has been allowed or disallowed. If the administrator fails to give notice of disallowance to the claimant within sixty days following the expiration of the four-month period running from the date of the approval of his bond, it “shall have the effect of a notice of allowance.”
Under this nonadversary method, a claim can be allowed without court intervention. Utilizing the adversary method, however, necessitates a court judgment (§ 9, fourth par.), before a creditor can bring a petition for рayment of an allowed claim in the Probate Court under § 9, sixth par., which authorizes orders for the payment of claims that have been allowed either expressly or by operation of law and of judgments on claims that have been litigated in another court. See Sprague v. O’Connell, supra at 235. Clearly, the nonadversary method of presentment promotes the purpose of the amendment to expedite the sеttlement of estates.
The Massachusetts system for the presentation of claims has been closely modeled on the U.P.C.
10
The major difference between the two is that the U.P.C. provides a single limitation
We turn now to the uncontroverted facts of this case. The administrators’ bonds were approved October 8, 1982. The plaintiff properly presented her claim on January 27, 1983. This occurred within the four-month period of nonadversary presentment. Thereafter, the administrators failed to disallow the claim within sixty days following expiration of the four-month period. Accordingly, the claim was constructively allowed. On April 28, 1983, twenty days after the sixty-day period had run, the administrators sent the plaintiff a notice of disallowance that did not warn of the impending bar to com
Once a creditor elects to proceed under the nonadversary method, both the creditor and the administrator must adhere to the relevant provisions of § 9. Section 9, third рar., provides for changing an allowance to a disallowance without specifying a time limitation. Thus, an administrator may do so whether the previous allowance was express or constructive, but the creditor then must be given sixty days in which to commence suit. The notice of disallowance, therefore, must expressly contain a warning of the impending bar or it is inoperative.
We agree with the plaintiff’s argument that the dual methods of presenting claims are separate and distinct. We think that the two tracks of presentation and their respective time limitations cannot be combined where an administrator changes his original decision of allowance to a disallowance.
13
In this context, the alternative nine-month statutory limitation for adversary claims provided by § 9, first par.
(b)
become irrelevant. See
Sprague
v.
O’Connell,
The administrators correctly assert that under a petition for payment the Probate Court lacks jurisdiction to determine the merits of the claim and the amount which is due. G. L. c. 197, § 9, sixth par. Sprague v. O’Connell, supra at 234-235. It is not the function of the Probate Court on a petition for payment to determine the amount (Sprague v. O’Connell, supra) or method of payment.
The fact that the administrators gave a defective notice of disallowance does not necessarily lead to the rеsult, as the plaintiff argues, that her claim is automatically allowed. A
Accordingly, the judgment of dismissal is vacated and a judgment consistent with the terms of this opinion is to be entered.
So ordered.
Notes
General Laws c. 197, § 9, second par., reads in part: “Claims against a decedent’s estate may be presented as follows:
(a)
The claimant within
General Laws c. 197, § 9, third par., reads: “As to claims presented by written statements of claim within the time limit prescribed above, an exeсutor or administrator may mail a notice to any such claimant stating that the claim has been disallowed. If, after allowing or disallowing a claim, the executor or administrator changes his decision concerning the claim he shall so notify the claimant. The executor or administrator may not change a disallowance of a claim after the time for the claimant to commence a proceeding on the claim has expired and the claim has been barred. Failure of the executor or administrator to mail notice to a claimant of action on his claim within sixty days after the time for original presentation of the claim has expired shall have the effect of a notice of allowance.”
This notice was not part of the record appendix before us. Ordinarily, we would not take cognizance of a document not included in the record appendix. However, the attorney for the administrators conceded at oral argument that the “fact of the matter is in this case the particular notice that was sent to [the plaintiff’s attorney] did not contain a warning” of the impending bar. See Mass. R. A. P. 18 (a), as amended,
The sixth parapraph of § 9 reads: “By complaint filed in the probate court, a claimant whose claim has been allowed as provided herein, but not paid, may secure an order directing the executor or administrator to pay the claim to the extent that funds are available for payment.”
Prior to the 1976 amendment, § 9 offered creditors only one method to present claims against an estate. A creditor had оne year from the approval of the administrator’s bond in which to commence an action in court. See St. 1954, c. 552, § 1. Upon a creditor’s application, the Probate Court had the discretion to extend this period an additional year. Id.
In enacting St. 1976, c. 515, § 15, the Legislature amended § 9 to include an additional method to present claims against an estate. A creditor can now file a claim of notice with the executor or administrator within four months after the approval of the bond and then be able to rely on the claim as having been allowed unless a notice of disallowance is received within sixty days after the expiration of the four-month period for presenting the claim. This is the nonadversary presentation of claims against an estate. See Project, Massachusetts Probate Reform — The Massachusetts Omnibus Probate Act and The Uniform Probate Code: A Comparative Study, 14 New Eng. L. Rev. 513, 575-577 (1979) (Project). The statute also retained the traditional method of commencing a legal action within nine months of the approval of the administrator’s bond.
General Laws c. 197, § 9, first par., provides, in relevant part: “Except as provided in this chapter, an executor or administratоr shall not be held to answer to an action by a creditor of the deceased unless (a) the claim is presented within four months from the time of his giving bond for the performance of his trust, and, in the event of disallowance in whole or in part in accordance with this section, such action is commenced within sixty days after mailing to him of a notice of disallowance or partial allowance wаrning the claimant of the impending bar, or (b) unless such action is commenced within nine months after the executor or administrator gives bond for the performance of his trust, whichever is later, and, unless in either case, before the expiration of the period, the process in such action 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,
See St. 1976, c. 515, § 15. The amendment took effect on January 1, 1978. See St. 1977, c. 76, § 2.
See 1974 House Doc. No. 2203. The bill included over thirty-five substantive changes in Massachusetts probate law. The drafters did not recommend adoption of the U.P.C. in full because the probate law in this Commonwealth was well established in many areas. See Young, Probate Reform, 18 B.B.J. 7-9 (March, 1974).
The American Bar Association approved the U.P.C. in 1969 in an effort to make probate law uniform among the various jurisdictions. The following jurisdictions have adopted the U.P.C.: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Kentucky (in part), Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, and Utah. 8 U.L.A. 1 (Master ed. 1983).
With minor changes, this system has been in effect in Massachusetts since the Seventeenth Century. See Atkinson, The Development of The Massachusetts Probate System, 42 Mich. L. Rev. 425, 440-450 (1943).
Compare G. L. c. 197, § 9, with U.P.C., 8 U.L.A. §§ 3-803 and 3-804 (Master ed. 1983).
General Laws c. 197, § 9, first par. (a), requires that a notice of disallowance or partial disallowance include a statеment “warning the claimant of the impending bar” namely the limitation of commencing an action within sixty days of the disallowance.
General Laws c. 197, § 9, third par., provides: “The executor or administrator may not change a disallowance after the time for the claimant to commence a proceeding on the claim has expired and the claim has been barred.” If an administrator had statutоry authority to reverse a disallowed claim that would have been barred, it would, in effect, permit him to give away estate assets. 1 R. Wellman, Uniform Probate Code Practice Manual 345 (2d ed. 1977).
The action of an administrator in disallowing a claim starts the running of the sixty-day period without regard to the nine-month statute of limitations. The sixty-day period following a notice of disallowance permits a creditor to challenge the disallowance in the appropriate court.