In re Clark , 3 Redf. 225 ( 1877 )

The Surrogate.

— Prior to the enactment of the statute (cited above), it was held in Eddy v. Traver (6 Paige, 52) that where an heir has conveyed part of the real estate descended to him, leaving the debts of the decedent unpaid, the Surrogate might direct the lands still belonging to the heir to be first sold for their payment, so as to protect the equitable rights of the purchaser from such heir.

It appearing that Robert B. Clark, the mortgagor to the petitioner’s assignor, has an interest in the Richmond county property, I am of the opinion that, under the section referred to, that interest should first be sold, and that it is not a sufficient answer that it will not probably bring enough to pay the debts of the estate, as that cannot be ascertained until a sale shall be made, and it may be that sufficient will be realized therefrom to reduce the balance of the debts to such a sum as will induce the Surrogate to direct leasing or mortgaging the Fourteenth street property, instead of ordering its sale.

But the interpretation of the statute given by the counsel for petitioner, would, in my judgment, result in many cases in doing great injustice.

If the expression, “heirs or devisees,” in the statute, is to be taken collectively, then all the heirs but one might convey their interest, and leave that one’s interest only, liable to a sale for payment of the debts of the estate, and so he become wholly deprived of his interest under the will, as he has no power to prevent the other heirs and devisees from making such sale or incumbrance. It would be no answer to say that the several heirs and devisees might be made liable over to the heir or devisee whose property should be devoted to the payment of the debts, for they might be insolvent. Hence equity, it seems to me, demands that the statute in question providing for a sale of real estate, not sold or encumbered by an heir or devisee, should refer to the residue of the interest of the particular heir or devisee, and not such as belongs to other heirs and devisees not thus conveyed; otherwise, equality in the payment of the debts by the respective heirs and devisees could not be attained, and the better rule would seem to be that if a mortgagee or. grantee take the premises of an heir or devisee, he should be held to take them subject to the payment of the debts of the estate equally from the property of the estate.

Let an order staying the sale of the Fourteenth street property until the interest of Robert B. Clark in the Richmond county property shall be sold, be entered, upon which sale it would seem to be equitable that the respective shares of the devisees should be sold together, so that no more of the petitioner’s interest in the Fourteenth street property shall be sold and apportioned for payment of debts than shall be equal to the share of the said Robert B. Clark, in the debts due from the estate.

Ordered accordingly.