In Heavey v. Maloof, Case No. SJC-10290 (Feb. 20, 2009), the Supreme Judicial Court addressed statute of limitations questions under G.L. 230, § 5.
The decedent died in 1992, survived by five children. Following the decedent's death, there was difficulty between her children. Specifically, her daughter Suzanne filed an action against the decedent's son David concerning the decedent's house in Norwood. During the course of this litigation, David was deposed and testified about some bank accounts on which the decedent had added his name as a joint account holder, giving rise to a potential claim for his misappropriation of the decedent's funds.
In 1998, one month after David's deposition, Suzanne petitioned to probate the decedent's will, which had not been filed until then because of the family difficulties. Although the decedent's son Edward was nominated in the will to be executor, Suzanne objected to Edward's appointment because she alleged that Edward had played a role in David's misappropriation of the decedent's funds. Consequently, rather than appointing Edward or any other member of the family, in 1999 the Court appointed an independent administrator of the estate with the will annexed.
Within three years of his appointment, but more than three years after David's deposition, the administrator filed suit against David for misappropriation of the decedent's funds. David moved for summary judgment on statute of limitations grounds, arguing that Suzanne was aware of the underlying facts giving rise to the claim more than three years before suit was filed and that her knowledge must be imputed to the estate because, pursuant to G.L. 230, § 5, she herself could have prosecuted the misappropriation claim when Edward, the nominated executor, refused or failed to do so. The Superior Court agreed and granted summary judgment for David. The SJC reversed.
First, the SJC explained that Edward was not an "executor" for purposes of G.L. 230, § 5 because he was never appointed as such. This statute provides that if an executor or administrator refuses or is unable to bring an action at the request of an heir, then the heir may bring the action directly without removing the executor or administrator. The statute's references to "executor" and "administrator" mean an appointed executor or administrator who is subject to removal, rather than someone who is merely nominated in a will to be a fiduciary.
Second, the SJC explained that there was nothing in the record to suggest that the plaintiff, as the appointed administrator, had ever refused or failed to file suit against David, and thus Suzanne's authority to file suit against David directly was never triggered. Accordingly, Suzanne's knowledge of the underlying facts was immaterial to the statute of limitations question. The administrator filed suit within three years of being appointed, and he cannot be deemed to have had any knowledge of the facts prior to his appointment.