Martin v. Cullen , 30 N.J. Eq. 426 ( 1879 )

The Chancellor.

Thomas Martin, deceased, late of Jersey City, by his will, proved November 8th, 1874, gave to his wife his household effects and his cow, and the use, so long as she remained his widow, of his lot, with the house thereon, known as No. 183 Seventh street, in Jersey City, with remainder in fee to his son Thomas, subject to a legacy of $1,000 to his son James. To James he gave two legacies, one of $1,000, just mentioned, and another of $4,000, charging the former on that remainder, and the other on the testator’s house and lot No. 185, in Seventh street, in Jersey City, which he gave, by the will, to his son Michael, subject to that legacy. He directed Thomas to pay the legacy of $1,000 to James in five years from the death of his (the testator’s) wife, writh interest during that period. He also directed him to secure the payment of the $1,000 and interest by his bond and a mortgage on the property on which it was so charged. He directed Michael to pay the $4,000 in five years from his (the testator’s) death, without interest; but, provided that if Michael should be unable to pay it within the five years, he should give to James his bond, payable in ten years from the time of the testator’s death, with interest from the expiration of the five years, the payment of the bond to be secured by a mortgage on No. 185. He also devised to Michael, in fee, a house and lot known as No. 152 Seventh street, in Jersey City, and gave the residue of his estate to him, to be applied to certain religious purposes.

The rule does not include taxes assessed after the decedent’s death, Wilcox v. Smith, 26 Barb. 316 ; Henry v. Horslick, 9 Waits 412; Gormley’s Appeal, 29 Pa. St. 49 ; Jackson v. Sassaman, 29 Pa. St. 106 ; Lucy v. Lucy, 55 N. H. 9 ; Barlow v. St. Nicholas Bank, 63 N. T. 399 ; Walker v. Diehl, 79 III. 473. See State v. White, 61 Mo. 441; People v. Olvera, 43 Cal. 492 ; Putnam v. Bussell, 17 Vt. 54; Watt v. White, 46 Tex. 388; Williams v. Holden, 4 Wend. 223. The costs of a lawsuit brought by the representative, are not within the rule, Dean v. Dean, 3 Mass. 258; Sanford v. Granger, 12 Barb. 392; Wood v. Byington, 2 Barb. Ch. 387. Nor the costs and expenses of administration, Drinkwater v. Drink-water, 4 Mass. 354; Gross v. Howard, 52 Me. 192, 196; Farrar v. Dean, 24 Mo. 16; Cornwall’s Case, 1 Tuck. 250; Fitzgerald -v. Glancy, 49 III. 465; Walworth v. Abel, 52 Pa. St. 370 ; Fitch v. Wiibeck, 2 Barb. Ch. 161. See Brazer v. Dean, 15 Mass. 183; Dunning v. Driver, 25 Ind. 269 ; Coblaugh’s Appeal, 24 Pa. St. 143; Bentz’s Case, 36 Cal. 687; and although necessary expenses may not be embraced in a petition with debts (Den v. Hammel, 3 Harr. 73), yet until reversed for that cause, the order is valid,0'Hanlin v. Den, Spen. 33, 50.

The admission of the will to probate was resisted by the testator’s daughters, and a litigation took place accordingly, in the Hudson orphans court. It resulted in favor of the validity of the will. The court, however, ordered the costs and counsel fees of both sides to be paid out of the estate. The personal estate being insufficient to pay the debts, application was made, by the executor, to the orphans court for an order directing the sale of land to pay debts, wbich was granted: the court ordering that the premises No. 185 Seventh street, devised to Michael, should be sold for the purpose. James died in 1873, after the death of the testator. He died intestate, and was never married. Neither of the legacies to him has been paid. Letters of administration of his estate were granted to his mother, the testator’s widow. The property ordered to be sold is that on which his legacy of $4,000 is charged.

Commissions are not included, Williams v. Williams, 8 Ohio St. 300; Holman v. Bennett, 44 Miss. 322; Newsom v. Newsom, 3 Ired. Eg. 411. See Drake v. Lee, 1 Mon. 247. The representative, in case of a just advancement, may be subrogated to the creditor’s rights, Liddel v. MeVickar, 6 Hal. 44; Williams v. Williams, 2 Dev. Eg. 69 ; Sanders v. Sanders, Id. 262; Ball v. Miller, 17 How. Pr. 300; and entitled to re-imbursement, Pea v. Waggoner, 5 Hayw. 242; Ingram v. Ingram, billeisk. 541; Smith v. Hoskins, 7 J. J. Marsh. 502; Collinson v. Owens, 6 Gill & Johns. 4; Lindsay v. Lindsay, 1 Desauss. 150; but not if the debts were barred by the statute of limitations when paid by him, Gilchrist v. Pea, 9 Paige 66; Mooers v. White, 6 Johns. Ch. 360 ; Pry’s Appeal, 8 Watts 253 ; Hamilton v. Newman, 10 Humph. 557; or the assets have been lost by his negligence, Turner v. Ellis, 24 Miss. 173 ; Stuart v. Kissam, 2 Barb. 493 ; aliter, where he has been blameless, Evans v. Fisher, 40 Miss. 643; Sligler v. Porter, 42 Miss. 449; Ingram v. Ingram, 5 Heisk. 541. That the judgment of the creditor is recovered after a distribution of the estate has been made, cannot affect his claim, Faran v. Pobinson, 17 Ohio St. 242; Jones v. Wighiman, 2 Hill (S. C.) 579; Bland v. Hartsoe, 69 N. O. 204; Hall v. Partridge, 10 How. Pr. 188. The purchase-money paid to an administrator cannot be recovered of the heir, at whose instance the sale is set aside, Nowler v. Coit, 1 Ohio 236 ; Dorman v. Tost, 13 III. 127.—Hep.

As administratrix of his estate, and in her own right as one of his next of kin, his mother filed her bill to stay the sale, with a view to obtaining equitable relief in this court.

The executors and Michael have answered. The other defendants have not.

After the testator’s death, Michael, as devisee, took possession of the property ordered to be sold, and has ever since retained it. He is liable to pay the legacy of $4,000 charged thereon. The amount to be raised for the payment of debts is about $1,100 and interest, and it is to be raised out of the real estate, the three lots, one of which, No. 183, is devised to the widow so long as she continues to be the testator’s widow, with remainder in fee to Thomas, subject, as to the remainder, to the legacy of $1,000 to James; and the other two, Nos. 152 and 185, are devised to Michael, in fee, the latter subject to the legacy of $4,000 to James. The remainder given to Thomas, and the land devised to Michael, are both liable to pay the debts, and are liable, after payment of the debts, to pay the legacies to James, respectively charged thereon. The devise to the widow was undoubtedly in lieu of dower in the real estate of her husband. Her estate in No. 183, therefore, ought to be protected. A proper proportion of the debts should be charged on Thomas’s interest in the one property, and Michael’s in the others; and each should, if necessary, be sold- to raise its proportion.

Of Michael’s property, No. 152 will be first sold to raise his proportion of the debts (he being liable to pay the legacy of $4,000), and if that property should not bring enough to pay his proportion, then No. 158 should be sold. If Thomas’s remainder does not bring enough to pay his proportion of the debts the balance must be made out of Michael’s property. Thomas’s remainder will also be liable to raise any part of the debts besides his proportion which Michael’s property shall fail to pay. The residue of the proceeds of the sale of Thomas’s remainder, after paying so much of the debts as required hereby, will be subject to the legacy charged thereon, and in like manner the residue of the proceeds of No. 185 (Michael’s property), if it be sold, will, after payment of so much of the debts as is hereby made payable therefrom, be subject to the legacy of $4,000.

There will be a reference to a master, to ascertain and report the proportions.