Taylor v. Taylor , 3 Bradf. 54 ( 1854 )

The Surrogate.

At the time of the intestate’s death, he had outstanding contracts for the erection of two houses, at Port Richmond, Staten Island. They were only partially constructed, and having since been finished, the question arises whether any and what part of the contract price is a charge on the personal estate.

On the death of an intestate, his lands descend to his heirs at law, and his personal estate to his widow and next of kin, subject to the payment of debts, liens, and charges. Mortgages are not paid out of the personal estate, but the heir takes the land cum onere. (1 Rev. Stat. p. 749, § 4). The mortgagee, if the land be insufficient, can have recourse to the personalty for the deficiency, after he has exhausted his remedy against the land. On the other hand there are some general liens which are paid out of the personal estate, as judgments and taxes due, at the intestate’s death.

Where the intestate has contracted to purchase lands, his equitable interest (Grosvenor vs. Allen, 9 Paige, 75), passes on his decease to his heirs at law, (1 Rev. Stat., p. 754, § 27), and if there are monies still remaining due on the contract, the same question may arise, as in this case, whether they are to be paid by the heirs or the legal representatives. (Johnson vs. Corbett, 11 Paige, 273). In equity upon such a contract, the land which the decedent had contracted to buy would be considered as real estate belonging to the heirs at law, and as between them and the personal representatives, the balance due for the purchase money would be a charge upon the personal property of the decedent. (Milner vs. Mills, Mosely, 123. Broome vs. Monck, 10 Vesey, 597, 614, 615. Whittaker vs. Whittaker, 4 Brown’s C. C. 31. 1 Sugden, V. and P., p. 180, 9th ed.)

In the present case, there can be no doubt that the bu-'1

had a right of action against the administratrix, and although he had a lien upon the land, that did not impair his remedy. The executors and administrators are bound upon all contracts of the deceased, though not named in the contract. (See Williams on Ex'rs., pp. 1466-7.) Our statute has excepted from the operation of this rule of the common law, mortgages upon lands executed by the decedent, which are made a charge on the land in the first instance. This exception stands alone, and the principle not having been extended beyond the particular case, the rule of the common law still prevails in all other instances. The consequence is, that every agreement in respect to improvements to be made upon lands must be made good out of the personalty. I am therefore of opinion, that the entire amount paid on the contract entered into by the intestate, must be discharged by the administratrix.