Horton v. Robinson

212 Mass. 248 | Mass. | 1912

Braley, J.

By force of the decree in the suit in equity the deed of the testatrix conveying the land in question although unconditional in form in legal effect became a mortgage at the date of delivery to the grantee, and at her death she was seised of an equity of redemption which under the will passed by devise to the defendant. Ewer v. Hobbs, 5 Met. 1, 3. Campbell v. Dearborn, 109 Mass. 130. It is immaterial that the defendant brought the bill as devisee, or that in compliance with the decree the property upon payment of the mortgage debt, apparently from her own funds, was reconveyed to her as if she had been the original owner, or that subsequently she sold and conveyed it and received the purchase price. The defendant in the primary discharge of her duty as executrix was bound to collect and apply the assets of the estate in payment of the debts of the testatrix, and, if she had redeemed within two years after giving notice of her appointment, the land notwithstanding the form of conveyance would have been held by her for the benefit of creditors. Putney v. Fletcher, 148 Mass. 247, 248. Marvel v. Babbitt, 143 Mass. 226. Dudley v. Sanborn, 159 Mass. 185. R. L. c. 146, §§ 1, 2. And she would have been entitled to reimbursement upon the settlement of her accounts in the court of probate for money advanced to discharge a valid mortgage debt of the testatrix. Munroe v. Holmes, 13 Allen, 109. The plaintiff, moreover, upon recovery of judgment against the defendant as executrix after redemption, and before expiration of the limitation could have levied the execution upon the land whether the ostensible title stood in her name or in the name of her grantee. Tracy v. Strassel, 191 Mass. 187.

But, as more than two years have elapsed since the defendant duly published notice of her appointment before the date of the plaintiff’s writ, the action cannot be maintained unless under the provisions of R. L. c. 141, §11, the estate when reconveyed is deemed new assets which can be applied in payment of debts, as if the property had been received within the two years. The omission of the executrix to inventory the property although she knew of the promise to reconvey upon payment of the loan, while significant, is not decisive of the question. Gould v. Camp, 157 Mass. 358, 360. It is certain, however, that by a conveyance absolute upon its face the testatrix had parted with the fee, and whether the oral agreement could be established depended as the event proved upon the successful outcome of future litigation. The statute should be given a practical application which will advance, and not defeat through over-refined distinctions, the remedy given to the creditor. Fay v. Haskell, 207 Mass. 207, 217. When the testatrix died no suit was pending as in Bradford v. Forbes, 9 Allen, 365, where after judgment the money collected was held not to be new assets, and the uncertainty of a suit in equity which would have to be instituted by the executrix to enforce the alleged right to redeem would not be considered ordinarily a commercial asset, or the equivalent of the property involved. It was not in the possession or within the control of the executrix until recovered, and an application for license to sell for the payment of debts a prospective law suit would have been a useless and vain formality. If the right to redeem was vested in the testatrix, the uncertainty whether it had any appreciable value was much greater than that in Quincy v. Quincy, 167 Mass. 536, and in Copeland v. Fifield, 180 Mass. 223, where a reversionary interest in real property supposed to have had no value at the intestate’s death, and not inventoried, but which long afterwards proved to be valuable, and profits made by an administrator who continued the business of his intestate, were decided to be assets. The defendant was not previously liable for this portion of the estate, but when she received the conveyance the property constituted assets not in existence when the inventory was filed, and which were new. Chenery v. Webster, 8 Allen, 76, 77. Welsh v. Welsh, 105 Mass. 229, 231. Glines v. Weeks, 137 Mass. 547.

It is contended by the defendant, that under the St. of 1907, c. 549, limiting the time within which the real estate of deceased persons conveyed absolutely or in mortgage for value and in good faith can be taken or sold for payment of their debts, the action is barred. But independently of the question, whether a devise of real estate is embraced within the words, “the real estate of the deceased conveyed absolutely or in mortgage,” this statute is inapplicable where the property upon redemption becomes assets of the estate.

The action having been begun within one year after the date of the acknowledgment and recording of the deed delivered by the mortgagee in accordance with the decree, the judgment of the Superior Court for the plaintiff should be affirmed. R. L. c. 141, § 11.

So ordered.