Jenkins v. Jenkins

The appellant, as administrator of his mother’s estate and individually, together with his brother and sister, brought this action for damages. The first count is for wrongful death (G. L. c. 229, § 2). In a second count the appellant and his sister in their individual capacities claim that the defendant assumed and violated a fiduciary duty toward them. The defendant, a brother of the plaintiffs, moved to dismiss the complaint, raising the defenses of (1) failure to state a claim upon which relief can be granted (Mass.R.Civ.P. 12[b][6], 365 Mass. 755 [1974]); (2) pendency of a prior action…