Lamport v. Beeman , 34 Barb. 239 ( 1861 )

By the Court, Johnson, J.

This case, so far as the defendant Beeman is concerned, must turn wholly, I think, upon the question whether it is incumbent upon the executor, or the devisee, to pay the purchase money remaining unpaid upon lands purchased by the testator and held by him by contract at the time of his death. It has been repeatedly, and I believe uniformly, held that the heir or devisee could compel the executors or administrators to pay off such a debt, for his benefit, out of the assets in the hands of the latter. (Dart on Vend, and Burch. 125. Broome v. Monck, 10 Vesey, 597. Livingston v. Newkirk, 3 John. Ch. 312. Cogswell v. Cogswell, 2 Edw. 231. Johnson v. Corbett, 11 Paige, 265.) The rule was the same in respect to lands incumbered by mortgage. But in regard to mortgages the rule has been changed by our statute, and the mortgage made a charge upon the land exclusively, to be paid by the heir or devisee, unless there be an express direction to the contrary in the will. (1 R. S. 749, § 4.)

It is argued on the part of the defendant that the contract debt, for the purchase money, is in the nature of a mortgage, and comes within the spirit and meaning of the statute. But whátever resemblance it may bear in equity to a mortgage, it is certainly not a mortgage within the intent and meaning of the statute; and the provision of the statute is confined exclusively to lands descending, or passing by devise, subject to a mortgage “ executed by any ancestor or testator.” It refers to no other charge or incumbrance whatever, legal or equitable. In all other respects the rule remains as it was before.

■It is entirely clear that this debt for the land was not by the will charged upon the real estate. The language of the will is clear and explicit. “ All debts which I shall justly owe shall be paid in preference to any devise or legacy herein contained.”

There is n.o doubt that the personal estate was abundantly sufficient for the payment of all the debts of the testator, including this debt for the land. And it can make no difference, in this case, that the life tenant used a small portion of the rents to pay that debt. She had the whole personal estate in her own charge and right, and it is not shown, or pretended, that it was insufficient, had it been so applied, to pay and satisfy all the debts of the testator.

But, had this been expressly shown, I do not see what claim her administrators could have. She agreed expressly to pay all the debts, if her co-executors would give up the whole estate to her. To this they assented, and she took the assets, and paid the debts, according to her agreement. It is suggested, rather than claimed, that this agreement was not binding upon her. I do not see why it was not. It was founded in a good consideration, as between her and her associates, who were acting for the interests of all having any claims upon the estate. At all events, the agreement was fully executed, on her part, and I do not see how her representative can now gainsay it, or claim any thing from it, as against any other person interested in the remainder.

[Monroe General Term, September 2, 1861.

The case was properly disposed of by the referee, and-the judgment must be affirmed, with costs against the appellant.

Smith, Knox and Johnson, Justices.]