Bennett v. R.J. Reynolds Tobacco Company (Lawyers Weekly No. 09-007-18)



SUFFOLK, ss                                                                                             SUPERIOR COURT


  1. 2017-0603-BLS1













In this action the plaintiff, Tina Bennett, alleges claims for wrongful death and civil conspiracy against the defendants[1].  She brings these claims as the Personal Representative of the Estate of David Bennett (David and the Estate).[2]  The defendants have moved to dismiss the complaint on the grounds that Ms. Bennett was appointed as the personal representative of the Estate under G.L. c. 190B, § 3-108 (4) of the Uniform Probate Code (UPC or the Code), and an appointment under that provision of the Code does not carry with it the authority to bring either a wrongful death action under G.L. c. 229, § 2 or a tort claim that belonged to the plaintiff’s decedent at the time of his death and had become an asset of the estate. [3]



The following facts are taken from the allegations of the plaintiff’s amended complaint, her petition for appointment as the personal representative of David’s estate (the Petition), and the Decree and Order on Petition for Late and Limited Formal Testacy and/or Appointment with respect to the Estate issued by the Worcester Probate and Family Court dated July 26 2017.

David Bennett died on March 7, 2014.  In the Petition, his residence is listed as 22 Roosevelt Dr., Southbridge, Massachusetts.  Southbridge is a town in Worcester County.  This action was first filed on February 22, 2017, although the plaintiff had not yet filed any process seeking appointment as the personal representative of the Estate by that date.  On May 16, 2017, the plaintiff filed a Petition for Late and Limited Formal Testacy and/or Appointment in the Worcester Probate and Family Court.  On July 26, 2017, that Court issued a decree allowing the Petition and appointing the plaintiff the personal representative of the Estate pursuant to G.L. c. 190B, § 3-108(4).  On August 11, 2017, the plaintiff filed an amended complaint alleging her appointment as the personal representative of the Estate.



The issue presented by this case is one of first impression, both in Massachusetts and other states that have adopted the UPC:  does a personal representative appointed with the limited authority provided by § 3-108(4) of the UPC have standing to bring tort actions that were the property of the deceased and are an asset of the estate and/or an action for wrongful death under G.L. c. 229, § 2?

  • 3-108 provides, as relevant to this question, that

No informal probate or appointment proceeding or formal testacy or appointment

proceeding, . . . , may be commenced more than 3 years after the decedent’s death, except . . .


(4) if no proceeding concerning the succession or administration of the estate has occurred within 3 years after decedent’s death, but the personal representative shall have no right to possess estate assets as provided in section 3-709[4] beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate; . . .


The MUPC Estate Administration Procedural Guide, Second Edition, published by the Administrative Office of the Probate and Family Court refers to a petition for appointment of a personal representative brought under this section of the UPC as a “Late and Limited Formal Proceeding.”  It contains the following “Practice Alert” regarding this type of appointment: “A late and limited appointed PR may not seek a license to sell real estate of the decedent. The PR’s authority is limited by statute to confirming title to estate assets in the successors and paying expenses of administration, if any.” (emphasis in original).


It seems clear that a personal representative appointed under § 3-108(4) does not possess a cause of action that belonged to the deceased and devolved to the estate, such as one for conscious pain and suffering experienced by the deceased prior to his death that was caused by a tortfeasor.  In consequence, this kind of personal representative cannot pursue those tort claims on behalf of the estate.  This limitation appears consistent with the limitation that the personal representative also cannot cause the estate to pay any claim other than a cost incurred in performing the limited function of confirming title in an asset to a successor. In other words, a “Late and Limited” personal representative can neither assert estate claims nor have estate claims asserted against him/her. Accordingly, the plaintiff in this case does not have standing to assert conspiracy claims that may have belonged to David before his death, a species of tort claims, against the defendants.


The question of whether the plaintiff can prosecute the wrongful death claims is more difficult, as those claims are never the property of an estate.

G.L. c. 229, § 2 provides, as relevant to this question:

A person who . . . causes the death of a person . . . shall be liable in damages . . . in the amount of: (1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, . . . Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. . . .


In consequence, while an action for wrongful death can only be brought by an executor or administrator of the estate of the decedent, any recovery obtained in this action is not property of the estate; rather the damages belong to the statutory beneficiaries of the wrongful death claim.  Therefore, the limitations expressly provided in § 3-108(4) concerning possession of the property of the decedent do not directly address the question of whether a personal representative with the limited authority provided in that appointment may pursue a claim under the wrongful death statute.

This lack of clarity is compounded by the failure of the legislature to amend the wrongful death statute when the UPC was enacted in 2012.  The UPC has discontinued the use of the terms executor and administrator in favor of the term “personal representative,” which encompasses both executors and administrators as well as others with limited authority.  To that end, the definition of “personal representative” set out in G.L. c. 190B, § 1-201 states that this term “includes executor, administrator, successor personal representative, special administrator, special personal representative and persons who perform substantially the same function under the law governing their status.”

In Marco v. Green, 415 Mass. 732 (1993), the Supreme Judicial Court (SJC) determined what type of estate administrator could compromise a wrongful death action under the applicable statutes addressing estate administration, as they existed prior to Massachusetts adopting the UPC.  In Marco, the SJC held that a voluntary administratrix did not have standing to prosecute or settle claims under G.L. c. 229, § 2.  It reasoned that the statutory scheme then in effect contained “express statutory limitations on the authority of certain administrators and executors to maintain or compromise a cause of action” and therefore that “G.L. c. 229, § 2 does [ ] distinguish between the various categories of executor and administrators.  We conclude that such executors or administrators do not come within the ambit of § 2 where another statute deprives them of the power to sue.” Id. at 736.  The SJC then based its holding on the fact that a voluntary administratrix could administer only estates of limited size and “administer only those assets and debts itemized.”  The limited authority granted this type of administrator was, therefore, inconsistent with a power to prosecute or compromise wrongful death actions.  See also Estate of Gavin v. Tewksbury State Hospital, 468 Mass 123, 136 (2014) (wrongful death action may not be brought by a temporary executor).

To summarize, a personal representative appointed more than three years after the death of the deceased pursuant to a “Late and Limited” petition only has authority to confirm title to assets in the name of the successors.  Such a representative cannot pay claims and cannot file claims on behalf of the estate because she does not possess them. Although certainly not free from all doubt, by analogy to the reasoning set out in Marco, a personal representative appointed under §3-108(4) is “deprived . . . of the power to sue” by that statute and, similarly, therefore cannot file a wrongful death action.[5]  In consequence, the plaintiff in this case does not have standing to pursue the claim she has asserted under G.L. c. 229, § 2.





For the foregoing reasons, the defendants’ motion to dismiss is ALLOWED. Final judgment shall enter dismissing the complaint.[6]



Mitchell H. Kaplan

Justice of the Superior Court

Dated: January 8, 2018

[1] This action is one of several personal injury or wrongful death claims asserted against the defendants alleging personal injury or death resulting from smoking cigarettes manufactured or sold by the defendants or their predecessors in interest.  The nature of the conduct allegedly causing the defendant’s death in this case is not relevant to the question of law raised by the pending motion.

[2] The case caption suggests that the plaintiff is also asserting her own direct claims against the defendants in addition to claims that belong to the Estate and claims under the wrongful death statute (G.L. c. 229, § 2); however, no direct claims appear to have been pled.

[3] The defendants’ motion does not specify the rule under which the defendants move for dismissal.  The court views the motion as a challenge to the plaintiff’s standing to assert the claims alleged.  Accordingly, it treats this motion as one asserting a lack of subject matter jurisdiction and therefore it is governed by Mass. R. Civ. P. 12(b)(1). See Ginther v. Commissioner of Ins., 427 Mass. 319, 322 (1998). (“[w]e treat  standing  as an issue of  subject matter jurisdiction .”)

[4][4] § 3-709 of the UPC applies to personal representatives appointed within the three year period following death and gives that person plenary rights to possession or control of the decedent’s property.

[5] The court was able to find a single case in which a court addressed the authority of a “late and limited personal representative” appointed under the UPC to file a law suit in a representative capacity—In re Estate of Wynn, 214 Ariz 149 (2007).  However, that case turned on the unique language of an Arizona law addressing who can file a statutory claim for elder abuse under the Arizona Adult Protective Services Act (the APSA).  In its opinion, the Arizona Supreme Court expressly stated that: “Because APSA provisions and policy resolve this case, we need not determine the general limitations on the powers of a late-appointed personal representative imposed by A.R.S. §14-3108(4), including whether a personal representative must ‘possess’ a claim in order to pursue it on behalf of a decedent’s estate.” That case therefore cannot inform the court’s reasoning on the question here presented.

[6] The defendants have asked the court to dismiss this case with prejudice.  This dismissal carries with it the res judicata effect of any dismissal for lack of subject matter jurisdiction.  Were the plaintiff able to have herself appointed a personal representative with the rights provided under § 3-709, she might be considered a different plaintiff.  The court takes no position on whether such appointment is available, as that is a matter that should be determined by the Probate and Family Court.

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