
    William C. Corkery & another vs. Mary C. Philbrook, administratrix.
    March 29, 1978.
    
      Paul A. Kramer for the plaintiffs.
    
      William A. Ryan (Maurice F. Joyce with him) for the defendant.
   1. Despite the plaintiffs’ argument to the contrary, this is an action for money damages for failure to perform an agreement entered into by the decedent prior to his death, and as such is an action ex contractu. Accordingly, it is not within the jurisdiction of a Probate Court. See G. L. c. 215, § 3. The action was rightly dismissed. Cf. Lucier v. Williams, 323 Mass. 458, 459 (1948). 2. We do not consider the plaintiffs’ argument that this action was "filed... for the purpose of obtaining security pending final determination of its claim in an action at law pursuant to G. L. Chapter 197, Section 13,” as, for all that appears, this contention is being raised for the first time on appeal. Kelsey v. Panarelli, 5 Mass. App. Ct. 480, 482 (1977), and cases cited.

Judgment affirmed.  