132 Mass. 502 | Mass. | 1882
The homestead in which Mrs. Mary T. Morse, the widow of Sumner R. Morse, who was named as the executrix of his will, had a life estate, the plaintiffs a subsequent life estate, and the Methodist Episcopal Church in Athol a remainder, was subject to a mortgage to Joseph Estabrook for the sum of $600. The interest of all parties was an interest in property specifically devised. Unless a contrary intention appear, such real property is to be exonerated from the incumbrances placed thereon by the testator or his ancestor, upon the general principle that the personal property of the testator forms the primary fund for the payment of his debts. In order to fasten such an incumbrance on land thus devised, there must be a clear expression of intent to that effect. Hewes v. Dehon, 3 Gray, 205. Plimpton v. Fuller, 11 Allen, 139. Richardson v. Hall, 124 Mass. 228. Johnson v. Gross, 128 Mass. 433. The devise of a term in real estate, or of a remainder after a term, is not less specific than that of the entire estate. Farnum v. Bascom, 122 Mass. 282.
Had therefore Mrs. Morse been legally the executrix of the estate at the time the mortgage was bought by Abner G. Stratton, as she possessed funds, it would have been her duty to pay the mortgage and relieve the homestead estate, but she had not been appointed to this trust at that time. It is found that, acting in collusion with her, and for the purpose and with the fraudulent intent of extinguishing the rights of the plaintiffs, Abner borrowed the money and purchased the mortgage of Estabrook; that the forms of a foreclosure were gone through with, which would apparently vest the title in him; and, this being done, that the estate, thus apparently obtained by foreclosure, was conveyed by him to Mrs. Morse. During the time that the three years’ possession was expiring, the plaintiffs were lulled into security by repeated statements by Mrs. Morse that she was keeping the interest of the mortgage paid up.
That Abner G. Stratton could have purchased this mortgage and proceeded to foreclose it, even if his object had been to vest the title thus acquired in his sister, may be conceded. He was a stranger, having no relations to the estate, and no duty to those
If the effect of the transaction was to invest her with a legal record title, that title she must hold for the uses for which the estate was devised by will. We are of opinion that such was its effect, except so far as the rights of third persons are concerned. This is a matter of much importance, so far as the rights of Amos T. Stratton as well as those of the plaintiffs are concerned. About a year after the foreclosure proceedings terminated and Mrs. Morse obtained her record title thereby, a mortgage of this estate was made by her to Amos T. Stratton, which was for money then advanced, and is found to be a bona fide mortgage. From the fact that it is in amount nearly the same as the money borrowed by Abner G. Stratton from him, and exactly equal to the Estabrook mortgage, it may well have been that it was intended to reimburse Abner, and to have a mortgage on the estate equal to what the Estabrook mortgage had been, while the subsequent devisees would apparently be deprived of their estate in the land by the foreclosure of that mortgage.
Whatever the design of Mrs. Morse, nothing appears to show that Amos participated in it. The fact that he was one of the witnesses to the entry of Abner is not important. His knowledge of that cannot charge him with knowledge that Abner was acting in. collusion with Mrs. Morse to deprive the subsequent
While .the master might find that, as between Abner and Mrs. Morse, the title had not passed so as to foreclose the mortgage as to the plaintiffs, or rather that the title thus passed was held by Mrs. Morse in trust for the other beneficiaries of the testator as well as herself, he could not thus decide in regard to such a third party. The fraud which made the transaction, so far as Mrs. Morse was concerned, one which compelled her to hold the estate subject to the rights of the other devisees, did not affect him. All the information required to be given of the foreclosure of the Estabrook mortgage appeared upon the record, which was perfect, and the plaintiffs cannot make him responsible
It will be necessary for the plaintiffs to pay what is due upon this mortgage before they can hold the estate discharged from it. Mrs. Bassett, devisee and legatee under Mrs. Morse’s will, cannot object to this; she has no such title as that which Amos acquired. Not being a purchaser for value, but a simple beneficiary under Mrs. Morse’s will, she can have no higher claim than her testatrix.
Whether, if the plaintiffs shall redeem this incumbrance thus placed on the estate, they are entitled to a remedy against the estate of Mrs. Morse, is an inquiry not presented by the bill in its present shape, which deals only with the question whether the mortgage to Amos T. Stratton is valid, but seeks no remedy on that account, should it be so held. This mortgage is decreed to be valid; that to Estabrook is held to have been discharged; and the plaintiffs are entitled to a decree which shall compel Mrs. Bassett to surrender the premises and account for the rents and profits since the decease of Mrs. Morse.
Decree accordingly.