Devens, J.
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 [507]*507who claimed under the will; he could purchase the mortgage as he might any other personal security, and avail himself of the ordinary means of enforcing it against the property, or of collecting it. But he could not lawfully enter into any transactions with one who had a fiduciary relation to the estate under the will, nor cooperate with her in lulling other beneficiaries into security by false representations that no such claim was being enforced, and thus obtain a title legal in form, which such a person could successfully maintain against those who had been thus deceived. Mrs. Morse did occupy a relation of peculiar trust towards the plaintiffs. She was the tenant of the life estate, and as such it was her duty to keep down the interest on the mortgage, and she falsely represented she was doing this. She also had taken possession, as executrix named in the will, of the whole estate of the testator, and was dealing with it as if the will had been admitted to probate. The estate was amply sufficient to pay all debts including this mortgage, which, in favor of the specific devisees, was a proper charge on the personal property. She sold the personal property, paid off with it debts and other mortgages, and had in fact disposed of it substantially according to the directions of the will, except so far as this estate is concerned, before the admission of the will to probate. Had she paid this mortgage debt to Estabrook, as it would have been the duty of the rightful executrix to do, and had she afterwards been properly appointed, her payment would have been validated and allowed in her account. Had the transactions carried on between her and Abner been conductbd with the money of the estate, the plaintiffs could have had the benefit of them as done for the estate. It cannot, as against her, make any difference that the money of the estate was not used, but instead thereof money which was borrowed by Abner, while she held the money of the estate which should have been devoted to the payment of the mortgage. Standing in the relation she did to the estate and to the plaintiffs, she cannot be allowed to say that she was acting adversely to them; and, having entered into a transaction for the purpose of cutting them off, she cannot be allowed to say she has succeeded, by means of an abuse of their confidence in her, and her possession of funds, which otherwise might have been, and properly should have been, devoted to the payment of [508]*508this mortgage. The argument of the defendants is, that, when she bought this title, she was not executrix, and owed no duty to the plaintiffs; and that, when she became executrix, the mortgage had been for a long time extinguished, and therefore there was no debt. This is not tenable. She cannot thus escape the responsibilities which she assumed by dealing with the property as executrix named in the will. Any title which she thus acquired must have been obtained for the benefit of those entitled to regard her as in a fiduciary relation to those interested under the will. Treating the transaction as it is viewed by the master, the proceedings thus fraudulently conducted between Abner and Mrs. Morse did not operate, as against the plaintiffs, as a foreclosure, but only as an assignment of the mortgage; and an assignment of a mortgage to one who, for the benefit of others, is bound to extinguish it, is a discharge. Wadsworth v. Williams, 100 Mass. 126.
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 [509]*509tenants of their interest in the estate. An entry under the mortgage bought by Abner to foreclose, which was the only act known to him, was an ordinary and lawful proceeding. The master distinctly declines to find that he participated in any fraudulent purpose of Abner and Mrs. Morse, or had knowledge of any fraudulent purpose on their part. Mrs. Morse had a title by record to this property apparently perfect. All the proceedings necessary to foreclose the mortgage had been taken.
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Devens, J.
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 [507]*507who claimed under the will; he could purchase the mortgage as he might any other personal security, and avail himself of the ordinary means of enforcing it against the property, or of collecting it. But he could not lawfully enter into any transactions with one who had a fiduciary relation to the estate under the will, nor cooperate with her in lulling other beneficiaries into security by false representations that no such claim was being enforced, and thus obtain a title legal in form, which such a person could successfully maintain against those who had been thus deceived. Mrs. Morse did occupy a relation of peculiar trust towards the plaintiffs. She was the tenant of the life estate, and as such it was her duty to keep down the interest on the mortgage, and she falsely represented she was doing this. She also had taken possession, as executrix named in the will, of the whole estate of the testator, and was dealing with it as if the will had been admitted to probate. The estate was amply sufficient to pay all debts including this mortgage, which, in favor of the specific devisees, was a proper charge on the personal property. She sold the personal property, paid off with it debts and other mortgages, and had in fact disposed of it substantially according to the directions of the will, except so far as this estate is concerned, before the admission of the will to probate. Had she paid this mortgage debt to Estabrook, as it would have been the duty of the rightful executrix to do, and had she afterwards been properly appointed, her payment would have been validated and allowed in her account. Had the transactions carried on between her and Abner been conductbd with the money of the estate, the plaintiffs could have had the benefit of them as done for the estate. It cannot, as against her, make any difference that the money of the estate was not used, but instead thereof money which was borrowed by Abner, while she held the money of the estate which should have been devoted to the payment of the mortgage. Standing in the relation she did to the estate and to the plaintiffs, she cannot be allowed to say that she was acting adversely to them; and, having entered into a transaction for the purpose of cutting them off, she cannot be allowed to say she has succeeded, by means of an abuse of their confidence in her, and her possession of funds, which otherwise might have been, and properly should have been, devoted to the payment of [508]*508this mortgage. The argument of the defendants is, that, when she bought this title, she was not executrix, and owed no duty to the plaintiffs; and that, when she became executrix, the mortgage had been for a long time extinguished, and therefore there was no debt. This is not tenable. She cannot thus escape the responsibilities which she assumed by dealing with the property as executrix named in the will. Any title which she thus acquired must have been obtained for the benefit of those entitled to regard her as in a fiduciary relation to those interested under the will. Treating the transaction as it is viewed by the master, the proceedings thus fraudulently conducted between Abner and Mrs. Morse did not operate, as against the plaintiffs, as a foreclosure, but only as an assignment of the mortgage; and an assignment of a mortgage to one who, for the benefit of others, is bound to extinguish it, is a discharge. Wadsworth v. Williams, 100 Mass. 126.
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 [509]*509tenants of their interest in the estate. An entry under the mortgage bought by Abner to foreclose, which was the only act known to him, was an ordinary and lawful proceeding. The master distinctly declines to find that he participated in any fraudulent purpose of Abner and Mrs. Morse, or had knowledge of any fraudulent purpose on their part. Mrs. Morse had a title by record to this property apparently perfect. All the proceedings necessary to foreclose the mortgage had been taken. There had been an entry made in the presence of witnesses, which had been recorded, on the tenant in possession, who had agreed to pay rent. This entry had been maintained by possession for three years. The possession which the law contemplates may be constructive, and it will be presumed to continue after the open peaceable entry which the law requires has been formally made, even if the mortgagor remain on the premises. Ellis v. Drake, 8 Allen, 161, 163. Fletcher v. Cary, 103 Mass. 475, 477. All that a lawful owner of the mortgage acting without any collusion with the "tenant in possession would ordinarily do had been done. Nor is the fact that the assignee of the mortgage, when his title was completed, conveyed to the tenant for life, any notice to a third party of anything wrong in the transaction. The tenant for life might lawfully purchase such a title. An executor indeed might lawfully do so for his own benefit, using his own money for the purpose, and not being in possession of assets from the testator’s estate, which it would be his duty to apply to prevent the foreclosure of the mortgage on which such a title rested. Sanderson v. Edwards, 111 Mass. 335, 341.
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 [510]*510for their neglect to observe the proceedings against their property, or the false security into which they were lulled by no act of his. .
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.