Samra v. Yuan

664 N.E.2d 1202, 40 Mass. App. Ct. 934

• Court: Massachusetts Appeals Court
• Decided: May 20, 1996
• Docket: No. 94-P-1804
• Status: Published

Opinion

1. The basic contention underlying the defendant’s argument on the standing issue is that the one-year time limit for obtaining a license to sell the premises found in G. L. c. 202, § 20, has expired.³ The judge seems to have relied on language of several older cases starting with Hooker v. Porter, 271 Mass. 441, 446 (1930), and ending with Roper v. Murphy, 317 Mass. 176, 178 (1944), which suggest that a legal representative of an estate, at least before obtaining such a license, has no power to sell or take possession. Moran v. Manning, 306 Mass. 404, 409 (1940).

Where the will authorizes the plaintiff to manage all of the testator’s property, the question whether summary process is barred by the one-year limitation contained in § 20 is irrelevant. In the Hooker line of cases it was undisputed that the decedents died intestate or without granting a power of sale under the will. Here, the testator gave the power of sale to her executor by an unambiguous provision in her will. Such a grant obviates the need to petition for a license under the statute. See Going v. Emery, 33 Pick. 107, 113 (1834); Justice v. Sonderlund, 225 Mass. 320, 323 (1916); Reilly v. Whiting, 332 Mass. 745, 747 (1955); Newhall, Settlement of Estates § 11.9 (5th ed. 1994). As executor, the present plaintiff’s interest in the property, regardless of when defendant’s [or devisee’s] interest vests, remains continuing and absolute.

While an executor, in an excess of caution, may wish to obtain a court license when selling real estate, see Onanian v. Leggat, 2 Mass. App. Ct. 623, 628 (1974), such a license is not mandatory where, as here, the will gives the executor the power to deal with the real estate in any manner. Bryant v. Lombardi, 261 Mass. 489, 491 (1928).

Henry B. Raphaelson for the plaintiff. James F. Bergin for the defendant.

2. The foregoing discussion effectively answers the question posed by the judge. However, the defendant sought to avail himself of G. L. c. 197, § 9 (1989 ed.). He contends that the commencement of the summary process action occurred after the expiration of the “short” one-year limitation set forth in § 9(a).⁴ This provision applies to civil actions brought by creditors of the deceased. Nashua Sav. Bank v. Abbott, 181 Mass. 531 (1902), and has no applicability to this case.

3. It is not necessary to chronicle in detail other arguments offered by the defendant to the effect that he possesses some inchoate right in the property that prevents the plaintiff from maintaining the summary process action. They are without merit.

The judgment is reversed, and the case is remanded to the Housing Court for further proceedings in accordance with this opinion.

So ordered.

3 Section 20 provides: “No interest in the real estate of a deceased person conveyed absolutely or in mortgage for value and in good faith by an instrument duly recorded shall be liable to be taken on execution, or sold under any judicial proceeding for payment of his debts, costs of court, or claims against his estate, except claims for taxes, municipal assessments or succession taxes, legacies or other charges created by will of the deceased, or the expenses or charges of administration, after the expiration of one year from the time of the first appointed executor or administrator first giving bond for the performance of his trust, unless in pursuance of a license to sell granted in consequence of an order for the retention of assets passed under the provisions of section thirteen of chapter one hundred and ninety-seven upon a petition filed within said year or before said conveyance or mortgage is recorded, or unless in pursuance of a license to sell granted upon a petition filed in the registry of probate within said year . . . .”

4 Section 9(a) states: “Except as provided in this chapter, 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 and unless, before the expiration of such 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, 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.”