C99-01194Commonwealth of Massachusetts Superior Court CIVIL ACTION Bristol, ss.
February 23, 2000
MEMORANDUM OF DECISION AND ORDER ON MOTION TO DISMISS
HELY, JUSTICE.
A. Introduction
The defendant’s motion to dismiss contends that the courts of the Commonwealth have no personal jurisdiction over her regarding the claims in the complaint. The defendant is correct that the court lacks personal jurisdiction regarding all the claims except the claim of a breach of a fiduciary duty as an executor of an estate in Massachusetts. With respect to the latter claim, the Superior Court will not exercise subject matter jurisdiction. For these two reasons, the action is dismissed.
B. Personal Jurisdiction
The plaintiff and the defendant are sisters. The plaintiff is a Connecticut resident. The defendant is a Rhode Island resident. The plaintiff alleges various breaches of fiduciary duties and fraud by the defendant regarding assets of their father and assets owned by two inter vivos trusts and one business corporation that the father created. The trusts are Rhode Island trusts governed by Rhode Island law. The corporation is a Rhode Island corporation. All the assets in question are in Rhode Island. Nearly all of the tortious conduct alleged in the complaint occurred in Rhode Island and occurred before the death of the father, J. Daniel Emond. These are undisputed facts in the verified complaint and in the affidavits of the plaintiff and the defendant.
The only arguable basis for the Commonwealth to exercise personal jurisdiction over the defendant in this action is under the Longarm Statute, G.L.c. 223A, sec. 3 (c), for a cause of action “arising from” the defendant’s “causing tortious injury by an act or omission in this commonwealth.” The complaint alleges many causes of action. Under the Section 3 (c) standard, the only cause of action alleged which could be said to arise from an act or omission in Massachusetts is the claim that the defendant breached her fiduciary duty as the executor of Mr. Emond’s estate.
Mr. Emond died in Massachusetts. His will has been submitted for probate in the Massachusetts Probate and Family Court. The defendant is the executor of the estate. The gist of the plaintiff’s claim regarding the defendant’s service as executor is that she breached her fiduciary duty as executor by failing to render an accounting, failing to correct her own improper actions, and failing to restore to the estate assets that she had wrongfully diverted from Mr. Emonds and his trusts and corporation prior to his death. This is something of a backdoor way of getting at the allegedly wrongful conduct that occurred before the Mr. Emonds’ death. Nevertheless, the court cannot say as a matter of law that it lacks personal jurisdiction over the defendant regarding this one claim.
C. Subject Matter Jurisdiction Over the Claim of Breach of Duty as Executor of Estate
The plaintiff’s claim alleging a breach of fiduciary duty by the defendant as the executor of the deceased father’s estate does not properly belong in the Superior Court. Under G.L.c. 195, sec. 11, if the executor of the estate of a deceased person is “unsuitable” or “neglects to render his accounts and to settle the estate,” it is the Probate and Family Court that has the authority or subject matter jurisdiction to remove the executor and appoint a suitable person as administrator. See G.L.c. 193, sec. 9. The proper remedy for the plaintiff’s claim regarding the estate is a petition in the Probate and Family Court for the removal of the executor and for the appointment of an administrator. If the executor is removed, the administrator appointed by the Probate and Family Court would then be the proper party to determine whether to bring a claim against the former executor on behalf of the estate.
Even if it is assumed that the Superior Court has subject matter jurisdiction over the claim that the defendant breached her fiduciary duty as executor of the estate, it would be wholly inappropriate for this court to exercise such jurisdiction while the estate is the subject of a pending proceeding in the Probate and Family Court and while the defendant remains as the executor subject to the authority of that court.
D. Order
The motion to dismiss is allowed. The action is dismissed.
________________________ Charles J. Hely Justice
DATED: February 23, 2000