Wе are of opinion that the objection taken by the defendant to the title of the plaintiff to the real estate agreed to be conveyed, is not well founded. The property was purchased by the plaintiff at a judicial sale under a judgment for the foreclosure of a mortgage held by him. The fee of the mortgaged premises was at the time of that foreclosure vested in Mrs. Sarah P. Raynor, executrix of William H. Raynor, deceased, subject to the mortgage held by the plaintiff. In foreclosing his mortgage, the plaintiff made Mrs. Raynor a party defendant individually and as executrix, but did not make parties all the beneficiaries under the will of Raynor, and the omission to make some of these beneficiaries parties, is now alleged as a defect in the plaintiff’s foreclosure.
The executrix, Mrs. Raynor, оbtained title to the premises by purchasing them at a sale under the foreclosure of a second mortgage on the same premises, which was held by Raynor at the time of his death. Raynor then had no title to the property and, consequently, no title thereto was dеrived by his executrix under his will, and the beneficiaries thereunder took no interest in the property at the time of the testator’s death. The only claim Raynor had was his mortgage, which passed as personal property to his executrix.
If the plaintiff had commenced thе foreclosure of his prior mortgage while the executrix of Raynor still held this second mortgage, she certainly would have been the only party necessary to be made a defendant for the. purpose of representing the interest of Raynor’s estate in the mоrtgaged premises, and the beneficiaries under the will of Raynor would not have been necessary or proper parties to such foreclosure.
But before the plaintiff commenced his foreclosure the executrix of Raynor foreclosed her seсond mortgage, and for the protection of her lien, bid in the property at the sale for a sum less than sufficient to pay the amount due on the mortgage and took a deed from the referee to herself, subject to the plaintiff’s mortgage, in which deed she was desсribed as executrix of and trustee under the will of William H. Raynor, *68 deceased. The title, thus acquired, she held at the time of the foreclosure by the plaintiff of his mortgage.
By the will of William H. Raynor he devised his residuary estate, real and personal, to his executrix and executors in trust, to convert the same into money and invest the proceeds and apply the income thereof to the use of his widow and children during their respective lives, in certain proportions specified in the will, with remainders over to their issue in the principal. The widow аlone qualified as executrix. As such executrix and individually she was made a party defendant in the plaintiff’s foreclosure, and the executors named in the will were also made parties, as well as the cestuis que trustent, the children of the testator,■ who were entitled to the income оf the trust estate during their lives, but certain grandchildren of Raynor, then living, who had vested remainders limited upon the interests of their parents, were not made parties, and their omission is the defect alleged by the defendant.
The court at Special Term decided that the objеction made by the defendant to the plaintiff’s title was not tenable, and rendered judgment in favor of the plaintiff. This judgment was reversed at General Term, the court holding that all the parties interested in the estate of William EL Raynor, deceased, under the trusts created by his will and thе remainders limited therein, were necessary parties to the foreclosure.
This decision is placed upon two grounds : First, it. is said that the mortgage held by the testator Raynor was a portion of his estate, and included in the directions, contained in his will, and that the grandchildren were interested in it in remainder, the same as they were in other portions of the testator’s estate, and consequently necessary parties to the foreclosure of the prior mortgage. This position would lead to the conclusion that if the mortgage held by Raynоr’s executrix had not been foreclosed, but had remained in her hands as part of the testator’s personal estate at the time of the foreclosure of plaintiff’s prior mortgage, all persons ultimately interested in the estate of Raynor were necessаry parties to the foreclosure. This we cannot sustain. The legal title to all the personal *69 estate of a testator vests by law in his executors, who represent the interests of all parties concerned, and have full power of disposition over it, and under thе modern law in respect to mortgages, according to which the mortgagee takes no estate in the land mortgaged, the lien of a mortgage held by executors is effectually barred by the foreclosure of a prior mortgage in an action in equity to which the executors of the second mortgagee are parties. (Calvert on Parties, 19-20.) The legatees, creditors or other persons interested in the estate of the deceased, are no more necessary parties to such an action than they would be tо an action brought by the executors of the deceased party to foreclose the mortgage held by them, and it cannot matter what dispositions are made by the will, of the personal or real estate, provided the particular mortgage has not been specifically bequeathed and delivered over to the legatee.
But it is said, in the second place, that by the sale of the land to the executrix under the foreclosure of the second mortgage, and the conveyance to her as executrix and trustеe under the will of the testator, the land became subject to all the provisions of the will, and under those provisions estates became vested directly in the testator’s grandchilden, an estate in remainder being limited to them upon the death of their parents.
We cannot concur in this view. There is no question about the general rule that where the equity of redemption has been sold or devised, and become divided into particular estates and remainders, the owners of these estates should be parties to an action to fоreclose the mortgage, and that when the equity of redemption has been vested in trustees for the benefit of others the cestuis que trustent, as well as the trustees, should be parties. (Story’s Eq. Plead., § 193.) But the trusts here referred to are express trusts under which the cestuis que trmtant acquire equitable estates or intеrests directly in the land, as land, and not trusts implied by law, where the whole legal title is in one person, subject only to a liability to account to others for the value of the property.
*70 It may happen that an executor or administrator, without authority, invests the funds of the deсedent’s estate in land; or he may take land in payment of a debt due to the estate which he represents, or may purchase it for the protection of the estate at an execution sale under a judgment belonging to the estate. Under such circumstances'the executor or administrator in one sense holds the land in trust for the persons beneficially interested in the estate, and can be compelled to account for it. But if the land is subject in his hands to a prior mortgage, the mortgagee in foreclosing it is not bound to make the devisees or legatees in the case of an executor, or the next of kin in case of an administrator,- or the creditors of the deceased in either case, parties to the foreclosure. The legal title to the land is in the executor or administrator, but as between him and the legatees, next of kin and creditors of the deceased party it is personal estate, and he holds it as the legal representative of the deceased.
In all the cases which have been referred to on the part of thе respondent those who have been held to be necessary parties have been entitled to some direct estate or interest, legal or equitable, in the land as land. In
Nodine
v.
Greenfield
(
That land bought in by executors on a foreclosure of a mortgage belonging to the estate is to be treated as personal property, which the executors may sell, and for which they are accountable as such, has been frequently decided, and it is immaterial whether the deed is taken in the names of the executors as such or in their individual names.
(Clark
v. Clark,
The fallacy of the argument on the part of the defendant consists in assuming that the property became subject to the trusts and estates created by the will. As to real estate of which the testator died seized, those trusts and limitations took effect directly, but as to the personal estatе the ease is different. The title to personalty vests in the executors, as such, by operation of law, and their title, as executors is paramount to that as trustees. Trustees can take personalty only through the executors. Trustees, even when they are the samе persons as the executors, take only as legatees.
(Newcomb
v.
Williams,
The order of the General Term should be reversed, and the judgment rendered at Special Term should be affirmed, without costs to either party.
■ All concur. ■
Order reversed, and judgment affirmed.