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summoned as trustee was a debtor of the defendant at common law, the dezisions have gone some length in charging him before the intervention of claimants was allowed, (Coburn V. Ansart, 3 Mass. 319,) and have held him discharged by payment, since that time, where the claimant had notice, and neglected to appear, (Randall v. Way, 111 Mass. 506.) See Mortland v. Little, 137 Mass. 339. But the cases cited show that the claimant may appear if he sees fit, and assert his right, whether they be equitable or legal. Pub. St. c. 183, § 35. See, also, Underwood v. Boston Five-cent Sav. Bank, 141 Mass. 305; S. C. 4 N. E. Rep. 822.

Exceptions overruled.

(143 Mass. 234)

PIERCE, Ex'r, v. GOULD. (Supreme Judicial Court of Massachusetts. Essex. January 6, 1887.) APPEAL-IN PROBATE-ACCOUNT, ASSENT OF ADMINISTRATOR DE Bonis Non-PARTY TO

APPEAL.

One entitled to a share in a reversion in a fund, either under the testator's will or by the statute of distributions, may appeal from a decree of the probate court allowing the final account of the administratrix, although the administrator de bonis non of the estate has assented to the allowance of the account. Appeal from a decree of the probate court for Essex county, allowing the first and final account of the executrix of the will of Thomas Pritchard, Jr., as rendered by the executor of her will. Hearing in the supreme court, before C. ALLEN, J., who dismissed the appeal, on the ground that the party had no right to enter an appeal, and at the request of the appellant reported the case for the determination of the full court. The facts are stated in the opinion.

Ira A. Abbott and Francis H. Pearl, for appellant.

The time allowed for an appeal by a person aggrieved, by Pub. St. Mass. C. 156, $$ 6, 7, had not expired when the payment of June 20, 1885, was made. Therefore, if the appellant was “a person aggrieved" within the meaning of section 6, her rights were not affected. The right of appeal in such cases is not confined to parties. Farrar v. Parker, 3 Allen, 556, 557. The appellant had originally the right of appeal. Smith v. Sherman, 4 Cush. 411. A person may appeal who has a pecuniary interest which may be remotely affected by the decree appealed from. Lawless v. Reagan, 128 Mass. 592, 593; Hayden v. Stoughton, 5 Pick. 528–536. See Dole v. Johnson, 3 Allen, 364. As an heir at law, the appellant can appeal from the allowance of the account if there is property not devised or bequeathed by the will. Kent v. Dunham, 14 Gray, 279–281; Smith v. Haynes, 111 Mass. 346; Gen. St. c. 92, § 28; Lee's Appeal, 18 Pick. 285, 290; Smith v. Bradstreet, 16 Pick. 264; Boynton v. Dyer, 18 Pick. 1.

W. D. Northend, for appellee.

We submit that said Noyes, as such administrator de bonis non, was “the sole representative of the estate,—the trustee for all persons having an interest in it,and, as such, it was his province and duty to see that the account was settled correctly. He is aggrieved in his property, if there be any failure to account for all that is due to the estate.” Wiggin v. Swett, 6 Metc. 198; Downing v. Porter, 9 Mass. 385. The provisions of statute that any person aggrieved, etc., may appeal, does not apply to an heir or legatee. See Farrar v. Parker, 3 Allen, 556, and cases cited. None of the appellants in these cases were heirs or legatees. An heir has no more right to appeal, in such a case as this, than he has from the allowance and payment by an administrator de bonis non of a note against the estate of his testate. If he does not properly administer his trust, he is liable on his bond.

HOLMES, J. This is an appeal from a decree of the probate court allowing the final account of the executrix of the will of Thomas Pritchard, Jr. The

administrator de bonis non of Pritchard assented to the account as allowed. The appellant is a sister of the testator, admitted to be entitled to a share of a reversion in a fund, either under the will or under the statute of distribution, it is immaterial which. The debts and charges against the estate have been paid. The appeal was dismissed on the ground that the appellant had no right to enter an appeal.

There is no doubt that the administrator de bonis non might have appealed if he had not seen fit to assent to the account, (Wiggin v. Swett, 6 Metc. 194;) but we are of opinion that the appellant has the same right, and is a “person aggrieved” within Pub. St. c. 156, § 6. It is settled that the right is not confined to those who would have been legal parties to the suit under proceedings at common law or in equity, but extends to others whose pecuniary interests are affected. Farrar v. Parker, 3 Allen, 556; Smith v. Sherman, 4 Cush. 408; Boynton v. Dyer, 18 Pick. 1; Smith v. Bradstreet, 16 Pick. 264; Lee's Appeal, 18 Pick. 285; Lawless v. Reagan, 128 Mass. 592.

The appellant's pecuniary interests are affected by the decree in this case. In the first place, it will be observed that this is not a case where a legatee is seeking to enforce a remedy against a debtor where an executor refuses to sue, (Bowsher v. Watkins, 1 Russ. & M. 277; Yeatman v. Yeatman, 7 Ch. Div. 210,) or against a person otherwise accountable to the estate from which his legacy is to come, (Downing v. Porter, 9 Mass. 386.) Such claims are one degree more remote than the present. There is no privity between the legatees and the debtor. But this is a question between the legatee and the representatives of her testator's estate. The appellant had a direct interest in the fund in the hands of the accounting executrix before the administrator de bonis non was appointed. The executrix was not a mere debtor to the estate in her own hands. Marvel v. Babbitt, ante, 566. A residuary legatee “has a lien upon the fund as it is, and may come here for the specific fund.” McLeod v. Drummond, 17 Ves. 152, 169. See Wilson v. Moore, 1 Mylne & K. 126, 337.

As the amount the appellant would receive depended on the amount of the estate when all debts were paid, and as she was entitled to insist on receiving that amount from the estate as an identified trust fund, she was entitled to insist on the estate being kept up to its proper amount, by whatever person held it for the time being. She therefore had a right, against the executrix, independent of the administrator de bonis non, that the executrix should turn over the whole amount for which she was accountable, and, if the executrix had not kept that amount of assets distinct, to have the trust fund made good by suit upon her bond. The appellant must have the right, against the administrator de bonis non, in like manner to insist on his collecting and receiving the whole trust fund which ought to come to his hands. The latter is now a mere dry trustee, as all debts and charges are paid. See Bacon v. Abbott, 137 Mass. 397, 398. Even if he could be made answerable on his bond if he assented to a decree for a less sum than it should be, the appellant has a right to insist on receiving her share of the assets as such, instead of being driven to the personal security of the bond.

But, if the appellant has not the right of appeal, it is hard to see how she is to be protected in any way. It would seem paradoxical that the decree should conclusively establish, in favor of the executrix, against a party interested in the fund, that she was accountable for no more, as it undoubtedly would, and yet leave it open to charge the administrator for not having collected more. See Harvard College v. Emory, 9 Pick. 446, 464. If, for any reason, the appellant would be concluded by the decree, she has the right to appeal from it. Farrar v. Parker, ubi supra; Lewis v. Bolitho, 6 Gray, 137.

We may add, with regard to Downing v. Porter, ubi supra, as we have partly intimated already, that there the appellant had no interest in the estate of the testator which was the subject of the account, but only in the es

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tate of a residuary legatee of the testator. Besides, there was nothing to show that the residuary legatee's administrator would not have taken an appeal if requested. The foregoing reasoning applies with equal force if it should be held that the appellant's claim was outside of the will. See Smith v. Haynes, 111 Mass. 346.

Appeal to stand for hearing. (143 Mass. 232)

HUZZEY 0. HEFFERNAN. (Supreme Judicial Court of Massachusetts. Essex. January 6, 1887.) MORTGAGE EXTINGUISHMENT SECOND MORTGAGE COVENANT AGAINST ALL EXCEPT

PRIOR MORTGAGE-SALE UNDER FIRST MORTGAGE.

Where a second mortgage on real estate is given, with a covenant against "the lawful claims and demands of all persons except those claiming under the prior mortgage," and the premises are sold under a power of sale contained in the first mortgage, and by subsequent conveyances come to the original mortgagor, he is not estopped by the covenant in the second mortgage from claiming the fee unincumbered, since he now holds under the first mortgage, which was expressly excepted in his covenant of warranty. This was a real action in which the demandant declared on his seizin in fee and in mortgage. Trial in the superior court, which found for the tenant, and the demandant alleged exceptions. The facts are stated in the opinion.

D. 0. Allen, for demandant.

The mortgagor is estopped from setting up a title derived from the first mortgage. Wright v. Shumway, 1 Biss. 27; Otter v. Vaux, 2 Kay & J. 650; Wires v. Peck, 26 Vt. 16; Lincoln v. Emerson, 108 Mass. 87. The first mortgage is extinguished. Thompson v. Heywood, 129 Mass. 404; McCabe v. swap, 14 Allen, 188; Putnam v. Collamore, 120 Mass. 454. The covenantin the second mortgage, as against the mortgagor and those claiming under him with notice, is without exception, and he is therefore estopped from setting up the title derived from the first mortgage against the second, even if such title be an after-acquired title. Somes v. Skinner, 3 Pick. 52; White v. Patten, 24 Pick. 324; Butler v. Seward, 10 Allen, 466; Lincoln v. Emerson, 108 Mass. 87; Russ V. Alpaugh, 118 Mass. 369; Parker v. Jones, 57 Ga. 204; Knight v. Thayer, 125 Mass. 25; Bush v. Marshall, 6 How. 284; Tefft v. Munson, 63 Barb. 32; Pratt v. Pratt, 96 Ill. 184; Gibbons v. Hoag, 95 Ill. 46. The tenant stands in no better position than the mortgagor himself. Jones, Mortg. par. 679; Hitchcock v. Fortier, 65 Ill. 239; Morse v. Aldrich, 19 Pick. 449; McCrackin v. Wright, 14 Johns. 193, 194; King v. Gilson, 32 Ill. 348; Gochenour v. Mowry, 33 Ill. 331; Jones v. King, 25 Ill. 383, 388; Kinsman v. Loomis, 11 Ohio St. 478; Easter v. Little Miami Ry., 14 Ohio St. 52, 54.

N. Morse and W. R. Howland, for tenant.

It is submitted that there is no estoppel to be fed, and that the tenant who claims under a subsequent grant from Blethen can assert an absolute title against the demandant. The second mortgagee had a right to redeem the first mortgage, but he chose not to exercise it, and so lost all rights in the premises, as did the mortgagor. Kinsley v. Ames, 2 Metc. 29. The tenant claims under Osborn, the purchaser at that sale, by an unbroken chain of title. The tenant is not estopped to assert an absolute title against the demandant. When the form of covenant is “against the claims of those claiming under the grantor, but against none other,” it is held the grantor is not estopped to claim under a paramount title. He does not violate his covenants in so claiming. Comstock v. Smith, 13 Pick. 116; Doane v. Willcut, 5 Gray, 329, 334; Bell v. Twilight, 26 N. H. 401; Loomis v. Pingree, 43 Me. 299; Quivey v. Baker, 37 Cal. 465, 470, 471; Fields v. Squires, 1 Deady, 366, 380; Rawle, Cov. (4th Ed.) 395, 398. A covenantor and those in privity with him may always assert facts not inconsistent with the covenants. Goodels v. Bennett, 22 Wis. 565; Ervin v. Morris, 26 Kan. 664; Stearns v. Hendersass, 9 Cush. 497; Cole v. Raymond, 9 Gray, 217; Gibbs v. Thayer, 6 Cush. 30. The rule that title to after-acquired property passed by estoppel, as against a subsequent grantee, though settled law in Massachusetts, has not met with general favor, and should not be extended. Knight v. Thayer, 125 Mass. 25; Rawle, Cov. (4th Ed.) 427 et seq.

The facts appear sufficient to open the foreclosure. There is no presumption that such a transaction is a redemption. Crittenden v. Rogers, 8 Gray, 452; Jones, Mortg. $$ 943, 944. After Blethen had made default and broken the condition, his possession became adverse to the mortgagee, which, if continued for 20 years, would ripen into an absolute title. The mortgagee's right of entry would then be barred by the statute of limitations. Wilkinson v. Flowers, 37 Miss. 579. See Reckhow v. Schanck, 43 N. Y.448; 1 Washb. Real Prop. c. 12, SS 1, 9. The possession of his grantee, who entered and kept possession without the consent of the mortgagee, would surely be adverse. Partridge v. Bere, 5 Barn. & Ald. 604, note; Thunder v. Belcher, 3 East, 449. The transaction is void for maintenance. Swett v. Poor, 11 Mass. 549; Brinley v. Whiting, 5 Pick. 348. The demandant, if he has any title, is estopped from asserting it. Chapman v. Chapman, 59 Pa. St. 214; Walker v. Flint, 11 Fed. Rep. 31; Herm. Estop. $$ 911, 917, 937, 940; Morse v. Curtis, 140 Mass. 112; S. C. 2 N. E. Rep. 929.

MORTON, C. J. The demandant claims under a mortgage to him from one Blethen, dated in November, 1874. When this inortgage was given, the estate was subject to a prior mortgage to the Warren Five-cent Savings Bank. The mortgage to the demandant is expressly made subject to the prior mortgage. It contains no general warranty, but the covenant is that the grantor will warrant and defend the premises against the lawful claims and demands of all persons except those claiming under the prior mortgage. In July, 1878, the savings bank foreclosed the first mortgage, and, under the power of sale contained therein, duly sold the premises to one Osborne. Without doubt this sale terminated the demandant's interest in the premises, and vested in Osborne an estate in fee free from the demandant's mortgage, or any right of redemption in the mortgagor or his subsequent grantees. Subsequently, Osborne conveyed the premises to said Blethen. Afterwards the premises were conveyed, through several intermediate conveyances, to the tenant.

The demandant claims that, when the premises were conveyed to Blethen by the bank, his mortgage title revived, and attached to the premises, on the ground that Blethen was estopped by his warranty to deny the demandant's title under his mortgage. We know of no principle on which this claim can be sustained. It is well settled that if a man conveys, with full covenants of warranty, land to which he has no title, or an imperfect title, and if he afterwards acquired a good title, his after-acquired title inures to the benefit of his grantee in the prior deed, upon the ground that he is estopped to say that he was not seized in fee of the estate which he has conveyed with warranty. Somes y. Skinner, 3 Pick. 52; White v. Patten, 24 Pick. 324; Russ v. Alpaugh, 118 Mass. 369; Knight v. Thayer, 125 Mass. 25. This rule rests upon the ground that a man shall not be permitted to allege a fact to be different from what he has expressly asserted it to be in his own deed.

But, in the case before us, Blethen, in his deed to the demandant, did not warrant against all titles. On the contrary, he expressly excepts from his warranty the title under the mortgage to the savings bank. In asserting that title, afterwards acquired by him, he does not allege anything inconsistent with his assertions in his deed. He asserts in his deed that the prior mortgage is a paramount title. To give the doctrine of estoppel the operation which the demandant claims, would be to enlarge Blethen's covenant to a general covenant of warranty. By the deed from the savings bank, Osborne took a title in fee paramount to the demandant's title. He could and did convey this paramount title to Blethen, who has done nothing to estop himself from asserting this title. The demandant, therefore, had no title as against Blethen, and it follows, of course, that he has no title as against the tenant. Judgment for tenant.

(143 Mass. 189)

POTTER and another, Ex‘rs, v. MERRILL and others.

(Supreme Judicial Court of Massachusetts. Bristol. January 5, 1887.) WILL-CODICIL-ADVANCEMENTS-PRECATORY WORDS.

Where a testator, by his will, divides his property among his six children, to five of whom he has made advancements differing largely in amount, and directs that the amounts advanced to each shall be considered as so much towards his or her share of his estate, and, by a codicil executed a few days later, provides that "all sums of money given to my children in my said will, and all sums paid to them by my executors under said will, are given to them, and are paid to them, for the benefit of their heirs, respectively, and are not to be in any way liable for their debts, or taken by their respective creditors, if any, in any way or form," the codicil will not be construed as depriving the children of their ownership, or as establishing a trust for their heirs, but as annexing a condition to such ownership, to which no

legal effect can be given. Bill in equity brought by the executors of the will of Edward Merrill for the instructions of the supreme judicial court as to the construction to be put upon certain clauses contained in said will and codicil. The clauses in question were as follows: "Seventh clause. It is my desire, in the disposal of my property, to do equally with all my children, and, as I have made advances to some of them in different amounts, I order and direct that the sums set against the names of my children, respectively, in this clause of my will, shall be taken and considered as so much advanced to them, respectively, towards their shares of my estate, viz.: John C. Merrill, $7,909.86; Mary C. Myrick, $1,958.32; Geo. B. Merrill, $1,729.05; Frank H. Merrill, $4,545.14; Charles R. Merrill, $550. Eighth clause. All the rest, residue, and remainder of my property and estate, of every description, real and personal, after the payment of my debts, I give and devise to my executors hereinafter named, and to the survivor of them, upon the following trusts and for the following purposes, viz.: The said executors, and the survivor of them, shall proceed to sell, by public or private sale, as soon as it can conveniently be done, my mansion house and lot in. New Bedford, and also my household furniture and other personal property on the island of Nashawana, except the live-stock, and shall pay over the proceeds of said sales to my children, Edward, Charles, George, Frank, and Mary, to equalize, as far as said proceeds will go, their several sums with the amounts charged against John in the seventh clause. The rest of my real estate—viz., my interest in Merrill's wharf, New Bedford; my interest in the island of Nashawana, and the livestock and personal property there; and my real estate at Florence, Los Angeles county, California—my said executors shall hold and keep for the term of 10 yrs. from and after my decease, unless within that time the said property can be sold for the following prices, respectively, viz.: The Merrill wharf interest at the rate of $70,000 for the whole, the Nashawana interest for $65,000, and the Florence land for $150 per acre. When these prices can be obtained, then said property is to be sold. And until such sale said executors shall rent said property, getting such income from the same as can be obtained, and, after paying the expenses of managing said property and the taxes, they shall use and apply said income in equalizing the sums mentioned. They shall also use and apply so much of the proceeds of said property, when sold, as may be necessary to fully equalize said sums, reckoning no interest on the same, and the balance of the said proceeds shall be paid over in equal shares to my six children, viz., John, Mary, Edward, George, Charles, and Frank.”

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