SUPREME JUDICIAL COURT OF MASSACHUSETTS. PIERCE V. GOULD. APPEAL January 6, 1887. - PUB. STATS., CHAP. 156, § 6. "" 'PERSON AGGRIEVED Although an administrator de bonis non, who has assented to the final account of an executrix, cannot appeal from the decree allowing the account, yet one entitled to share in the reversion of a fund is a "person aggrieved" within Public Statutes, chapter 156, section 6, and may appeal.* Appeal from a decree of probate court. The opinion states the case. I. A. Abbott and F. H. Pearl, for appellant. W. D. Northend, for appellee. 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 Pitchard, Jr. The administrator de bonis non of Pitchard 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 Public Statutes, chapter 156, section 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 id. 264; Lee, appellant, 18 id. 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. & Myl. 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 legatee 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 his own hands. Marvel v. Babbitt, ante (Bristol, '86). A residuary legatee has a lien upon the fund as it is, and may come *See 26 Eng. Rep. 430; 33 id. 517, notes. VOL. LX.-32 here for the specific fund. McLeod v. Drummond, 17 Ves. 152, 169. See Wilson v. Moore, 1 Myl. & K. 126; id. 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 adminis trator 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. 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 he should, 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. Harvard College v. Amory, 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 estate 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. Smith v. Haynes, 111 Mass. 346. Appeal to stand for hearing. WESTON V. WESTON. January 6, 1887. The statutory prohibition against granting a divorce, if the parties have never lived together as husband and wife in this Commonwealth, is not avoided by a transitory cohabitation here, but requires a domicile in the State. Libel for divorce. At the hearing before a single justice the following facts were found: Both parties lived in Massachusetts before their marriage to each other. They went to Portsmouth, New Hampshire, to be married, and were married there in May, 1884, he being twenty and she seventeen years old. He obtained employment there immediately afterward, and they remained there and he intended to live and stay there, and they lived together there for about five and one-half months, when she left him and returned to Massachusetts a few days later, but after the marriage they never had any thing to do with each other and had no communication whatever with each other in Massachusetts, but lived apart. She afterward took up her residence in Lynn, and in the summer of 1885 committed adultery there. The case was reported by the justice to the full court, if on these facts the court has jurisdiction, a divorce to be granted for the cause of adultery, otherwise the libel to be dismissed. W. H. Niles and G. J. Carr, for libelant. HOLMES, J. It was decided in Ross v. Ross, 103 Mass. 575, that the prohibition in General Statutes, chapter 107, section 12, Public Statutes, chapter 146, section 4, against granting a divorce if the parties have never lived together as husband and wife in the Commonwealth, is not avoided by a transitory cohabitation here, but requires a domicile in the State. In Eaton v. Eaton, 122 Mass. 276, which, perhaps, can be upheld on its special facts, domicile without cohabitation was thought to satisfy the condition, and a divorce was granted. But in Eaton v. Eaton the court appears to have overruled the earlier decision of Schrow v. Schrow, 103 Mass. 574, where the parties seemed to have been domiciled in Massachusetts, but it was held that their having lived in the State separately was not enough. We cannot escape from the literal meaning of the statute, which is not satisfied with residence merely, but requires the parties to have "lived together as husband and wife." If the result is an unintended anomaly, the remedy is in the legislature. After a residence here for the statutory time, the libelant may be entitled to his divorce under the law as it stands. Libel dismissed. HUZZEY V. HEFFERNAN. January 6, 1887. * A conveyance of land with full covenants of warranty, to which the grantor has no title, or an imperfect title, but thereafter acquires a good title, the after-acquired title inures to the benefit of his grantee; but where the grantor expressly excepts from his warranty a mortgage which in his deed he asserts is a paramount title, he may assert such title if he afterward acquire the same." Writ of entry to recover certain land in Lynn. The case was heard on agreed facts. The superior court gave judgment for the tenant, and the demandant appealed. The case is stated in the opinion. D. O. Allen, for demandant. N. Morse and W. R. Howland, for tenant. MORTON, Ch. J. The demandant claims under a mortgage to him from one Blethen, dated in November, 1874. When this mortgage * See 30 Eng. Rep. 17, note. was given the estate was subject to a prior mortgage to the Warren Five Cents 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 rights of redemption in the mortgagor, or his subsequent grantees. Subsequently Osborne conveyed the premises to said Blethen. ward the premises were conveyed through several intermediate conveyances to the tenant. After 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 afterward acquires 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 v. Skinner, 3 Pick. 52; White v. Patten, 24 d. 324; Russ v. Alpaugh, 118 Mass. 369; Knight v. Thayer, 125 id. 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 afterward acquired by him, he does not allege any thing 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. MARVEL v. BABBITT. Assets of an estate, including money, so long as the fund can be identified in the hands of an executor or administrator, are held by him en autre droit and quasi in trust, and upon receive of the administrator the administrator de bonis non is entitled to receive the assets in specie, and the proceeds of real estate sold are to be considered assets. It is the duty of the administrator to keep the funds distinct from his own, and if he does so, he will not be absolutely and personally bound as a debtor, but will be discharged if the funds are lost without his fault. In proceedings under trustee process the claimant may appear if he sees fit and assert his rights, whether they be equitable or legal. Action on contract. On exceptions. F. S. Hall, for plaintiff. L. E. White, for claimant. HOLMES, J. This is an action against Edward H. Babbitt personally, in which the plaintiff seeks to hold by trustee process the proceeds of a sale of real estate by Babbitt as administrator, which are now in the hands of his counsel. Babbitt has been removed from the office of administrator, and the fund is claimed by the administrator de bonis non. The court below ordered the trustee discharged and awarded the fund to the claimant. We are of opinion that this was the proper course. Courts of common law as well as of equity have long recognized that assets of an estate, including money, so long as the fund can be identified in the hands of an executor or administrator, are held by him en autre droit and quasi in trust. Pub. Stats., chap. 156, § 32; Weeks v. Gibbs, 9 Mass. 74; Dawes v. Boylston, id. 337, 352; Stevens v. Goodell, 3 Metc. 34; 3 Barr, 1369, note; Farr v. Newman, 4 T. R. 621, 648; McLeod v. Drummond, 17 Ves. 152, 168; Wilson v. Moore, 1 Myl. & K. 126; id. 337; Kinderly v. Jarvis, 22 Beav. 1, 2, 3. It follows that when an administrator is removed the administrator de bonis non is entitled to receive the assets in specie. Stevens v. Goodell, ubi supra; Pub. Stats., chap. 156, §§ 14, 15; Collins v. Collins, 140 Mass. 502, 505. And the proceeds of real estate sold are to be considered as assets. Pub. Stats., chap. 134, § 1. In this case the fund is identified. For even if Babbitt's counsel had made himself a simple debtor to Babbitt, the administrator, by depos iting the proceeds in his own private bank account according to the prevalent loose practice - Vail v. Durant, 7 Allen, 408-still the proceeds were the consideration of the debt, and thus could be traced, and, therefore, as between the administrator and the administrator de bonis non belonged to the latter. It does not appear, however, that the alleged trustee had not kept the fund distinct. The fallacy in the plaintiff's argument lies in the tacit assumption that an administrator becomes quasi a debtor to the estate for all moneys coming to his hands, and that, therefore, the specific moneys or proceeds of a sale belong to him. Whereas in modern times, at least, his duty is to keep the funds distinct from his own, and if he does so, he will not be absolutely and personally bound as a debtor, but will be dis charged if the funds are lost without his fault. Pub. Stats., chap. 156, $32. It is true that where the person summoned as trustee was a debtor of |