This is an action in contract for compensation for services allegedly rendered by the plaintiff to the defendant's testator over the period of eighteen years prior to the testator's death in 1963. Judgment was entered for the plaintiff in the amount of $74,921.18. The case is before us on three bills of exceptions filed by the defendant. The basic issue raised by the exceptions is whether the court acquired and properly exercised personal jurisdiction over the defendant as executor under the testator's will in light of the undisputed fact that he held his appointment by order of a Connecticut probate court.
We set forth the rather lengthy procedural history of the case.
The plaintiff sought to commence the action by a writ dated July 16, 1964, which recited that the defendant had a usual place of business in Boston and was the executor of the estate of James Stewart Rooney, late of Boston. After several unsuccessful attempts at service, the deputy
With the permission of the trial court the defendant, on March 4, 1966, filed his answer denying the allegations in the complaint and repeating the allegations in the plea in abatement. On October 21, 1968, the defendant, by leave of court, amended his answer by raising the Statute of Frauds (G.L.c. 259, §§ 1 and 5), and the statute of limitations (G.L.c. 260, §§ 2 and 9).
The plaintiff, on January 15, 1971, moved for an order of notice for service on the defendant under the long arm statute, G.L.c. 223A, which took effect on August 24, 1968. See Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 682 (1970). The motion was allowed and the order of notice issued. On February 6, 1971, the notice was served by registered mail on the judge of the Connecticut probate court where the will was being probated; on February 8, 1971, it was served on the defendant by registered mail. The defendant excepted to the allowance of the motion and filed his second bill of exceptions.
On January 27, 1972, a judge of the Superior Court denied the defendant's motion (filed on October 23, 1970), wherein he sought to amend his answer so as to allege that the plaintiff's action was barred by the short statute of limitations, G.L.c. 197, § 9, and, alternatively, that the plaintiff's claim was barred because it was not filed within the time allowed by the probate court in Connecticut under Connecticut law. The defendant filed a claim of exception, but failed to file a bill of exceptions.
In April, 1972, trial was held before a judge of the Superior Court sitting without a jury. The plaintiff offered the auditor's report and rested. The defendant filed a motion to amend his answer to allege that the plaintiff had not filed her claim within the time limited by the probate court in Connecticut for exhibiting claims as required by § 45-205 of the Connecticut General Statutes (1975). The defendant also filed a motion to strike the auditor's report on the ground that the court lacked jurisdiction.
On October 12, 1972, the court denied the defendant's motion to amend the answer and his motion to strike the auditor's report, denied the defendant's requests for rulings, and ordered judgment for the plaintiff on the auditor's report. The defendant excepted to these actions and filed his third bill of exceptions.
We summarize those facts found by the auditor material to the fundamental issue whether the court had properly exercised personal jurisdiction over the defendant as executor under the will of the testator even though he was appointed by a Connecticut probate court.
From 1944 to 1946, the testator, a graduate of Harvard Medical School, served as executive officer at the United States Naval hospital in Springfield. From 1946, when the testator was released from military service, until 1956, he was associated as a pathologist with many Massachusetts hospitals, did work for many insurance companies
The plaintiff met the testator in 1944 at the Naval hospital in Springfield where she was employed as a secretary. In August, 1945, the testator and the plaintiff entered into an oral agreement whereby the plaintiff would resign her employment and become personal secretary to the testator, who expected to be released from the Navy almost immediately enabling him to return to private practice in Boston. The parties agreed to all material terms of employment. From October, 1945, until January, 1948, the plaintiff worked part time for the testator while employed full time in other positions in the Boston area. The
In August, 1949, the testator, in a conversation at the Massachusetts women's hospital, told the plaintiff that he had just been appointed administrator of the hospital and needed her to work for him full time again. To induce the plaintiff to accept, the testator agreed that he owed her about $6,000 for work she had performed since 1945, and that the 1945 agreement was still in effect. He told her that he had stock worth over $500,000, and that if she returned to his employ he would leave her one-half his estate. In reliance on this agreement the plaintiff returned to full-time employment as the testator's private secretary in September, 1949. She worked full time for the testator until June, 1956. During these years the testator paid the plaintiff substantially less than agreed in 1945.
In June, 1956, the testator told the plaintiff he was planning to retire, but wanted her to provide him with part-time services. He said that this would not affect his will providing one-half his estate to the plaintiff. From August, 1956, to the date of the testator's death, the plaintiff worked full time for various employers and part time for the testator. In Cambridge, two weeks before the testator died, and again at the Deaconess hospital a short time later, the testator told the plaintiff that he had taken care of her in his will.
In 1960, the testator executed a will and in 1961, a codicil. The will was admitted to probate in a Connecticut probate court. The plaintiff was not mentioned in the will. The defendant, a Brookline resident who had practiced law in Massachusetts for many years, was appointed
1. The defendant contends that as a foreign executor he is not subject to suit in Massachusetts in the absence of statute. This is the general rule in Massachusetts. Old Colony Trust Co. v. Clarke, 291 Mass. 17, 23 (1935). DeVeer v. Pierson, 222 Mass. 167, 174-175 (1915), Beaman v. Elliot, 10 Cush. 172, 173 (1852). Borden v. Borden, 5 Mass. 67, 77 (1809). G. Newhall, Settlement of Estates § 70 (4th ed. 1958). It is also the general rule in a majority of the States. Burrowes v. Goodman, 50 F.2d 92 (2d Cir.), cert. denied, 284 U.S. 650 (1931). Annot., 77 A.L.R. 251, 255 (1932). Cf. McAndrews v. Krause, 245 Minn. 85, 90 (1955). Annot., 53 A.L.R.2d 323, 328-331 (1957). Restatement (Second) Conflict of Laws § 358 (1971). However, the rule has been severely criticized. Note, The Amenability to Suit of Foreign Executors and Administrators, 56 Colum. L. Rev. 915 (1956). Currie, The Multiple Personality of the Dead: Executors, Administrators, and the Conflict of Laws, 33 U. Chi. L. Rev. 429 (1966). To protect local creditors and to prevent a failure of justice, courts in some States have created exceptions to the rule. Thus suits against foreign personal representatives have been allowed where the decedent left assets in the forum State or where the foreign administrator or executor appeared voluntarily in the suit. Sylvania Indus. Corp. v. Lilienfeld's Estate, 132 F.2d 887, 891 (4th Cir.1943). McAndrews v. Krause, supra at 90-91. See cases collected in 77 A.L.R. 251, 255-256 (1932), 53 A.L.R.2d 325-328 (1957), and Restatement (Second) Conflict of Laws § 358, at 426-427 (1971). Even if these exceptions were recognized in Massachusetts, we do not consider them because of the auditor's
The original basis for the rule was that a foreign executor had no authority to act outside the State where he was appointed. Brown v. Boston & Me. R.R., 283 Mass. 192, 195 (1933). Langdon v. Potter, 11 Mass. 313, 314 (1814). Thus he lacked the capacity to bring suit in Massachusetts. Gallup v. Gallup, 11 Met. 445, 447 (1846). He also lacked the capacity to be sued here. Any judgment rendered against him in Massachusetts was considered a nullity. Borden v. Borden, supra at 76. However, the rule has not been rigidly applied. It has long been held that in order to raise the issue that a party lacked the capacity to sue as administrator or executor because he had been appointed by a court of another State, the defendant had to plead the matter in defense. In the absence of such pleading, the plaintiff could maintain the action in his representative capacity. Dearborn v. Mathes, 128 Mass. 194 (1880). This rule exists apart from the statutory provision that the allegation that a party is an administrator or executor shall be taken as admitted unless the party disputing it shall file a special demand for its proof. G.L.c. 231, § 30.
We are aware that the defendant filed a special demand for proof that he is executor under the testator's will, thereby placing on the plaintiff the burden of proving that fact. On establishment of that fact and the additional fact that the defendant held his appointment from a Connecticut probate court, the general rule insulating foreign executors from suit would ordinarily apply even though the defendant lived and worked in Massachusetts and the cause of action arose here. However, such perfunctory application of the rule is not required, for the rule is not based on the absence of jurisdiction. See Beaman v. Elliot, 10 Cush. 172, 173 (1852). As one critic observed, the rule arises out of "the unwillingness of the courts of one state to recognize an administrator appointed in another." Amenability of Foreign Administrators to Suit Under Non-Resident Motorists Statutes, 57 Yale L.J. 647, 652 (1948). Therefore, the State may authorize suits against a foreign personal representative if the court has judisdiction over him.
The General Court has exercised this authority with respect to suits arising out of motor vehicle accidents. Demonstrating its disfavor with the rule immunizing foreign personal representatives from suit, the General Court amended G.L.c. 90, § 3A (providing for service of process on the Registrar of Motor Vehicles in an action against a nonresident motorist who is involved in an accident in Massachusetts) by expressly declaring that substitute service applies not only to the nonresident motorist but also to his executor or administrator.
In the instant case there is no question that the court had personal jurisdiction over the defendant as executor of the testator's estate. The basis of jurisdiction permitted in the Hess case, implied consent, has given way to the
Having determined that the court had personal jurisdiction over the defendant as executor under the testator's will, we fail to perceive any sound reason why the general rule granting immunity to foreign executors should shield
We hold that the court acquired jurisdiction over the defendant as executor under Dr. Rooney's will when service was made on him in Massachusetts on December 23, 1964, and that the court properly exercised jurisdiction. Hence, the judge did not err when he overruled the defendant's plea in abatement. The exceptions in the defendant's first bill of exceptions are overruled.
2. In view of our determination that jurisdiction over the defendant was acquired and properly exercised in 1964 we need not consider the defendant's second bill of exceptions, which challenges the court's issuance under G.L.c. 223A of an order of notice in 1971. The result which we reach in this case is in no way based or dependent on that order of notice.
3. In his third bill of exceptions the defendant attacks the denial of his motion to strike the auditor's report, his motion to amend his answer, and his requests for rulings.
The defendant sought to raise the question of lack of jurisdiction in his motion to strike the auditor's report. He also sought in that motion to raise the question whether the plaintiff's claim was barred by Conn. Gen. Stat. § 45-205 (1975), the Connecticut nonclaim statute. Even assuming that these issues are properly raised by such a
The claim that the court erred in denying the defendant's motion to amend his answer, filed at the trial in April, 1972, and denied on October 12, 1972, is without merit. By this motion, the defendant sought to amend his answer by adding the defense of Connecticut's nonclaim statute. The judge did not abuse his discretion by denying the motion. The defendant had previously moved to amend his answer by adding the same defense on October 23, 1970,
The defendant's exception to the denial of his motion to amend the answer is overruled.
The third bill of exceptions also challenges the judge's denial of the defendant's ten requests for rulings. Requests Nos. 1, 9, and 10 raise issues not argued by the defendant and are therefore deemed waived. Mass. R.A.P. 16 (a)