Corkery v. Philbrook

Massachusetts Appeals Court

Corkery v. Philbrook

374 N.E.2d 289, 6 Mass. App. Ct. 861

CourtMassachusetts Appeals Court

DecidedMarch 29, 1978

StatusPublished

Cited by4 cases

This text of 374 N.E.2d 289 (Corkery v. Philbrook) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Corkery v. Philbrook, 374 N.E.2d 289, 6 Mass. App. Ct. 861 (Mass. Ct. App. 1978).

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Opinion

1. Despite the plaintiffs’ argument to the contrary, this is an action for money damages for failure to perform an agreement entered into by the decedent prior to his death, and as such is an action ex contractu. Accordingly, it is not within the jurisdiction of a Probate Court. See G. L. c. 215, § 3. The action was rightly dismissed. Cf. Lucier v. Williams, 323 Mass. 458, 459 (1948). 2. We do not consider the plaintiffs’ argument that this action was "filed... for the purpose of obtaining security pending final determination of its claim in an action at law pursuant to G. L. Chapter 197, Section 13,” as, for all that appears, this contention is being raised for the first time on appeal. Kelsey v. Panarelli, 5 Mass. App. Ct. 480, 482 (1977), and cases cited.

Judgment affirmed.

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1. Despite the plaintiffs’ argument to the contrary, this is an action for money damages for failure to perform an agreement entered into by the decedent prior to his death, and as such is an action ex contractu. Accordingly, it is not within the jurisdiction of a Probate Court. See G. L. c. 215, § 3. The action was rightly dismissed. Cf. Lucier v. Williams, 323 Mass. 458, 459 (1948). 2. We do not consider the plaintiffs’ argument that this action was "filed... for the purpose of obtaining security pending final determination of its claim in an action at law pursuant to G. L. Chapter 197, Section 13,” as, for all that appears, this contention is being raised for the first time on appeal. Kelsey v. Panarelli, 5 Mass. App. Ct. 480, 482 (1977), and cases cited.

Judgment affirmed.

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Bluebook (online)

374 N.E.2d 289, 6 Mass. App. Ct. 861, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corkery-v-philbrook-massappct-1978.

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