Brown v. Baron

Morton, J. The appellant objects to the payments made by the executor on account of the mortgage on the Moody Street property, and also insists that the rents of the Bridge Street estate do not belong to the executor as residuary legatee, but belong to the heirs at law, or to the estate. By the eighteenth clause of the will of Mary Merriam Abbott, the Moody Street property was specifically devised to John B. Brown, the executor. At the time of the death of the testatrix it was subject to a mortgage which had been given by the testatrix and her sister to the Mechanics’ Savings Bank of Lowell to secure a note given to it for money borrowed by them. There is nothing in the will indicating an intention on the part of the testatrix that the devisee should pay the mortgage, or that any different course should be pursued in the payment of' that debt from that pursued in the payment of her other debts. There is a provision that certain legacies shall abate in case of a deficiency, which would imply that the devise and legacy to the executor are not to be diminished. And we see nothing to take the case out of the well settled rule in this Commonwealth, that the devisee of specific real estate is entitled, in the absence of a contrary intention on the part of the testator, to have it exon [59] crated from a mortgage placed upon it by the testator, even though the personal estate is insufficient to pay general legacies. Hewes v. Dehon, 3 Gray, 205. Plimpton v. Fuller, 11 Allen, 139. Towle v. Swasey, 106 Mass. 100. Farnum v. Bascom, 122 Mass. 282. Richardson v. Hall, 124 Mass. 228. Morse v. Bassett, 132 Mass. 502. Creesy v. Willis, 159 Mass. 249. By the twenty-fifth clause of the will the executor is made residuary legatee, and is given power as executor to sell any of the real or personal estate. The Bridge Street estate formed part of the rest and residue, and the title therefore vested in the executor, subject to be devested by a sale, and until a sale the rents and profits belonged to the executor as residuary legatee. Gibson v. Farley, 16 Mass. 280. Newcomb v. Stebbins, 9 Met. 540. Almy v. Crapo, 100 Mass. 218. Brooks v. Jackson, 125 Mass. 307, 310. The effect of the residuary clause was not to vest in the executor first the power to sell to create a fund for the payment of debts and legacies, and then to give him what might remain; but it was to vest in him individually the title to the residue, with authority as executor to sell any or all of the estate, and apply it to the payment of debts and legacies. Brooks v. Jackson, 125 Mass. 307, 310. Upon discovering that he had mistakenly charged himself in his first account with the rents of the Bridge Street estate, he was entitled to have the error corrected. He will be presumed to have been in possession as devisee, and not as executor, and there is nothing in the fact that he included the rents in his account as executor to estop him from showing that it was a mistake. Newcomb v. Stebbins, ubi supra. Decree affirmed.