Opinion
March 16, 1979.
Joseph M. Cohen for the plaintiffs.
Walter E. Doherty, Jr. ( William E. Melahn with him) for the defendant.
1. As the facts asserted in the sixth and seventh paragraphs of the affidavit of the plaintiff Collins would, if found at trial, support a judgment for money damages in favor of both plaintiffs against the defendant in her capacity as executrix (see Cromwell v. Norton, 193 Mass. 291, 292-293 [1906]; Kemp v. Kemp, 248 Mass. 354, 357-358 [1924], and cases cited; Young v. Young, 251 Mass. 218, 221-222 [1925]; Bettencourt v. Bettencourt, 362 Mass. 1, 10-11 [1972]), it was error to dismiss the action under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974), insofar as relief is sought against the defendant as executrix. 2. It has not been argued that it was error to dismiss the action insofar as relief was sought against the defendant in her individual capacity. See Mass.R.A.P. 16 (a) (4), as amended, 367 Mass. 921 (1975). The present judgment is vacated, and the case is remanded to the Probate Court, where (a) a final judgment is to be entered under the provisions of the first sentence of Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), which dismisses the action as to the defendant in her capacity as an individual and (b) the case is to stand for further proceedings, including the disposition of the counterclaims (if they are not waived); the plaintiffs are to have costs of appeal from the estate.
So ordered.