Salaun v. Hartshorne

Pitney, Y. C.

This is, in effect, a contest as to whether Conover, the administrator of Mrs. Mary O’Rourke, or Lerché, the executor of her devisee, Felix O’Rourke, shall exercise the duty of receiving this money and paying the creditors of Mary. Those creditors-are clearly entitled to be paid before those of her husband and devisee, Felix, for he took and held subject to such payment. There is, confessedly, no personalty belonging to either of the-decedents, either here or in New York, nor is there other real estate sufficient to pay the claims presented • so resort- must be-had to this fund.

Now, I think when so much is said the matter is decided.

The sufficiency of the proof of the claim of the two principal creditors was but faintly questioned ; that of Connelly was substantiated by a properly-exemplified transcript of a judgment in New York against Mary and Felix O’Rourke, and again by a judgment thereon in this state against the devisees of Felix and it was for an amount nearly equal to the whole fund.

The claim of Wenzel was based on a promissory note, supported by the affidavit of Wenzel, made in the proceedings io the Monmouth county orphans court on application for letters of administration, and again by another affidavit, which was the-basis of his writ of attachment. There can be no doubt as to the bona fides of his claim.

It is said that Wenzel’s claim is not fully proven, because he was not produced and subjected to cross-examination before the master. I do not think the practice of this court requires that the validity of the claim against the estate of the decedent, upon, the strength of which the personal rejrresentative asks to have-the fund paid to him, should be finally determined and passed upon as a prerequisite to paying over the proceeds of the sale of lands to the personal representative. It is sufficient if the circumstances are such as to render it expedient or necessary to the proper administration of the estate of the decedent in the-orphans court. Such is, in effect, the language of the statute. P. L. of 1876 p. 140. Notwithstanding the action of this court in ordering the money paid over to the personal representative,, he will still be at liberty, either on his own account or at the request of any other person interested in the estate, to question the very claims for whose liquidation he asks to have the money.

It would, manifestly, lead to embarrassment, inconvenience and probably to injustice, in the present case, to pay over only a portion of the fund.

It is well settled that the statutory lien of a creditor upon the lands of his deceased debtor continues not only for a year, but until such lands are aliened by the heirs or devisees.' Haston v. Castner, 4 Stew. Eq. 697 (at p. 699); Westervett v. Voorhis, 15 Stew. Eq. 180.

The devise by Felix O’Rourke to Lerché and Teressa is relied upon as an alienation which divested the lien in this case. But I think it comes within neither the letter nor the spirit of the act. It is not a conveyance for value, and I think such is contemplated by the statute. Not only is a valuable consideration wanting, but there is present notice to the second devisee, inherent in Felix’s title, that Felix held subject to the payment of Mary’s debts. The devise by Felix, at best, amounts to a voluntary alienation by a devisee of the lands devised, subject to the debts of his devisor. Such an alienation cannot have the effect of divesting the statutory lien of the debts of the first devisor. Besides, here we have the lien created by the terms of the first devise, and the proper mode of enforcing that lien is to pay the money to the personal representative, who will distribute it among the creditors according to, law.

From an equitable standpoint, the right of Mr. Conover is entirely clear.

But if I had come to a different conclusion as to Conover’s rights, I should have been of the opinion that Connelly’s judgment in our supreme court should be paid, because it was founded on the joint debt of Mary and Felix, and was a joint judgment against Lerché and Teressa, as devisees of Felix; and further, for the same reason, I should have thought that the attachment of "Wenzel was a like lien on these lands.

The order to pay over the money to the administrator of Mary will be without prejudice to the right of any person interested in the estate to contest the claims of Connelly and Wenzel, or either of them.