Williams v. Van Dam

Braley, J. If the foreclosure1 of July 18, 1922, had been made in the lifetime of George P. Braxton, the mortgagor, of whose estate the plaintiff is administrator with the will annexed, it could have been reopened in a suit by him and redemption decreed on proof of allegations similar to those of the present bill, with an offer to redeem, because of misconduct in the execution of the power of sale which is admitted by the demurrer. Bon v. Graves, 216 Mass. 440, [63] 446, and cases cited. Emerson v. Atkinson, 159 Mass. 356, 360. The plaintiff however brings suit under G. L. c. 244, § 33, which provides that, “ If the person entitled to redeem a mortgaged estate dies, his heirs, devisees, executor or administrator may make a tender or commence or prosecute a suit for redemption which the deceased might have made, commenced or prosecuted.” The demurrants contend, that the testator’s widow Kate L. Braxton, the sole devisee, having died intestate May 23, 1922, and it not appearing that any license to sell for the payment of debts had been granted by the court of probate, and the heirs at law of the widow being the only persons interested in or “ affected . . . by the alleged conduct of the defendants ” the demurrer was rightly sustained and the bill dismissed. The equity of redemption at his death April 28, 1922, was part of the testator’s estate the whole of which she took under the will, and at her death May 23, 1922, it undoubtedly became part of her estate of which the plaintiff on July 25, 1922, was appointed public administrator under G. L. c. 194. If the widow were living it would be unnecessary for the plaintiff to obtain license to sell as a condition precedent to redemption. A decree in his favor would have enured for her sole benefit. Aiken v. Morse, 104 Mass. 277. Long v. Richards, 170 Mass. 120. But even if she died before the foreclosure and it is assumed that she was unmarried, the plaintiff can redeem for the benefit of her next of kin, if any, whether they are residents or nonresidents, and if eventually no heirs are found the estate after the payment of debts and charges of administration will escheat to the Commonwealth. G. L. c. 190, § 3, cl. 7. The statute being remedial should be liberally construed, and we find nothing at variance with our conclusion in Aiken v. Morse, 104 Mass. 277; Mason v. Daly, 117 Mass. 403; Long v. Richards, 170 Mass. 120, and Clark v. Seagraves, 186 Mass. 430, the only cases where on facts plainly distinguishable from the case at bar it has previously been considered and applied. The decree must be reversed and the demurrer overruled. Ordered accordingly.