James

In this title there occurs a mortgage given to two persons as executors and trustees under the will of one Monks, an assignment thereof by only one of the executors, and a discharge by the assignee.

In two old Massachusetts decisions a distinction is made, as to the right of one executor to assign a mortgage, between a mortgage taken by the testator and a mortgage taken directly by the executors. In the case of a mortgage made to the testator, one of two executors may make a valid assignment. George v. Baker, 3 Allen at 326, note. Where however a mortgage is made direct to the executors, one executor cannot assign it. Smith v. Whiting, 9 Mass. 334.

Neither case has been cited in any later decision in this State, and the text books differ radically in their opinion as to the law in the matter.

Mr. Crocker cites both cases with approval, and adds some authorities in support of George v. Baker. The cases cited by Mr. Crocker merely go to the authority of one executor to give a discharge however. Crocker, Notes on Common Forms, p. 182. In Lomax on Executors (360), and in Williams on Executors (9th Ed. 818), the principle is laid down that one of two executors cannot assign a debt of the testators, because it amounts practically to the assignment of a chose in action, and the co-executor might refuse to *127come in, citing the old English case of Lepard v. Vernon 2 V & B 54. In Tiedeman on Commercial Paper (148) tbe point is made tbat tbe taking of a mortgage by an executor is not within the strict duties of bis office, and tbat therefore tbe investment may be held to be tbat of tbe estate, or it may be held to be tbat merely of tbe executors individually. In Daniels on Negotiable Instruments (section 266) Smith v. Whiting is disapproved of, and it said tbat tbe better opinion recognizes no distinction between a mortgage taken, by tbe executors and one given to tbe testator himself, citing Bogert v. Hertell in New York, and MacKay v. St. Mary’s Church in Rhode Island. In Jones on Mortgages, Sec. 796(a), tbe same doctrine is stated, relying on Bogert v. Hertell, but Smith v. Whiting is not mentioned.

In tbe Rhode Island case tbe matter is disposed of very briefly, and tbe Court merely follows Bogert v. Hertell rather than Smith v. Whiting. Moreover tbe case itself was an action on a promissory note given for a debt due tbe testator, and so witbin tbe distinction made in Tiedeman, and readily distinguishable from Smith v. Whiting. MacKay v. St. Mary’s Church 15 R. I. 121.

The case of Bogert v. Hertell was very fully considered and three times reported. The facts were like those in the case at bar, with the additional circumstance that in Bogert v. Hertell the executor who made the assignment misappropriated the funds thereby obtained. The Vice-Chancellor went into the question very thoroughly, and based bis decision that the assignment was invalid upon the ground 'that in taking the mortgage the executors were not acting within the proper scope of their duties as executors, and must therefore be deemed to have taken it as trustees. On appeal the Chancellor sustained the decision, citing Smith v. Whiting. The case then went to the Court of Errors where, by a divided court and with a strong dissenting opinion filed, the decisions below were reversed, and Smith v. Whiting was *128disapproved. Hertell v. Van Buren, 3 Edw. Ch. 20. Bogert v. Hertell, 9 Paige, 52. Bogert v. Hertell, 4 Hill. 492.

Whatever the law may be elsewhere, in Massachusetts the case of Smith v. Whiting has never been overruled, and moreover the decision itself appears to be perfectly sound. The principle involved is not a matter of pleading, it is simply the question whether the note or mortgage was taken by the holders in their capacity as executors and within their duties as such, or in the capacity of trustees, whether trustees de jure or de son tort being immaterial.

There must be service of process in this case on the Monks estate. If the petitioners can show that the mortgage was accounted for in that estate, they may on the ground of equitable estoppel have a decree; but on the record as it stands, the title is not proper for registration.

So ordered.

Note: See Robbins v. Horgan, 192 Mass. 443.