Bradford v. Forbes

Hoar, J.

If the rights of the general creditors of the plaintiff’s testator were regularly before us for adjudication, it would seem that their claim could not be supported. With full knowledge of all the facts, and without fraud or misrepresentation, they mane an agreement with the executor which the law does not authorize him to make, and voluntarily allowéd their debts to become barred by the statute of limitations. There is nothing to distinguish their case from the recent decisions in Waltham Bank v. Wright, 8 Allen, 121, and Jenney v. Wilcox, ante, 245. The recovery of the judgment by the executor in a suit pending at the time of the testator’s death, and the receipt of the money, did not constitute any new assets in the hands of the executor after the period of limitation, within the meaning of Gen. Sts. c. 97, § 6, or the statutes of which that is a revision. Chenery v. Webster, 8 Allen, 76.

' But there is no question of the rights of creditors before us. The executor brings this bill, in the nature of a bill of inter-pleader, to obtain the direction of the court in the execution of his trust. These creditors have no claims against him. Their claims are barred by the statute; and the creditors have not filed any bill in equity, under the provisions of St. 1861, c. 174, § 2, and St. 1863, c. 235. There is therefore no obstacle on their part to his proceeding to settle the estate according to the will. It is obvious that this suit is not the proper mode in which to try the right of the ordinary creditors of a deceased person to collect their respective demands.

The remaining question is a simple one; and depends upon the just construction of Mr. Bussell’s will. By his will he gave his dwelling-house to his daughter in law, Mrs. Amelia Bussell; and expressly directed that the mortgage upon it should be discharged. There were but two specific devises or legacies; and the bequest of the residue is of “ what shall remain ” after the specific legacies have been satisfied, and his debts, including the mortgage on his dwelling-house, paid. It is plain that it was his intention that Mrs. Bussell should have the dwelling-house free of incumbrance. But he conveyed it to her in his lifetime, “subject to mortgage of $4200.” This was an ademption or revocation pro tanto of the will. The argument is now urged, that by the conveyance “subject to the mortgage” it became the duty of the grantee to discharge the incumbrance ; and that the testator not only parted with his title to the real estate, but made a contract by which his personal debt was provided for leaving nothing on which the provisions of the will could operate Without deciding whether the mere grant of an equity of redemption, subject to the mortgage, if made to a stranger, would imply an agreement to indemnify the grantor against the mortgage, we think this case presents a clear distinction. If the proposition were true to its whole extent, or only so far as the title to the estate is concerned; that is, that if the grantor should be obliged to pay the mortgage, he would be subrogated to the rights of the mortgagee against his grantee; and supposing even that the latter relation existed during the life of the testator between him and Mrs. Russell; we are of opinion that there is nothing which sufficiently indicates any change of his purpose to exonerate the real estate from the mortgage debt. By his will, there were two purposes clearly expressed; one, to give Mrs. Russell his interest in the dwelling-house, which was only an equity of redemption; the other, to relieve his devise of the incumbrance, which was his own personal debt. The first he executed in his lifetime, and thereby took it out of the operation of the will. The other remained at his death in part unperformed, and his will in that respect remained unchanged. 1 Washburn on Real Prop. 565, 566, 567, and cases there cited. Hays v. Jackson, 6 Mass. 149.

The decree will therefore be entered that Mrs. Russell is entitled to have the mortgage on the dwelling-house which was outstanding at the testator’s death discharged, before any distribution shall be made to the residuary legatees; and that the costs of all parties to the litigation be paid from the fund.

Decree accordingly.