In re the Estate of Kene , 8 Misc. 102 ( 1894 )

Coeein, S.

It is claimed by the counsel for the respondent that the bond accompanying the mortgage was an obligation of the deceased which his executors should pay, they having sufficient funds of the estate for that purpose. If this view were correct the mortgage would be satisfied out of the personal estate, and the devisee of the house and lot would take it free therefrom, and so be liable to the payment of the tax. In this he seems to be -in error. Such was the rule in England, but it was changed in this State as early as 1786, and is continued to the present day. By sec. 4, page 749, of the 1st Revised Statutes now in force, it is provided that “whenever any real estate, subject to a mortgage executed by an ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor, unless there be express direction in the will of such testator that such mortgage be otherwise paid.” See revisers’ note to the section. The will gave no direction for thei.payment of the mortgage.

The word “ ancestor,” in Termes D'e La Ley, is said, in a forensic sense, to be more properly applied to the possessor of an estate than to an ancestor of a family, and in this sense it is frequently, and, indeed, most generally, employed in books which treat of descents of real estate and in statutes relating to that subject. Burrill, in his Law Dictionary, defined it to be “one who has gone before or preceded in the seizin or possession of real estate.” Here the devisee takes it cum onere. Taylor v. Wendel, 4 Barb. 324; 4 Kent’s Comm. 420. In a proceeding in Surrogates’ Courts to sell real estate for the payment of the debts of a decedent, on which there is a mortgage, the bond which usually accompanies it is never treated as a debt to be proven.

As the value of the equity in the premises is found to be less than $500, it is exempt from taxation, and the decree fixing the tax is, therefore, reversed, with costs.

Decree reversed, with costs.