102 Misc. 242 | N.Y. Sup. Ct. | 1918
Robert D. Delaney died January 30, 1914, in the ownership of two parcels of real estate. One situate at Tenafly, N. J.; the other on the Saugerties road in the town and county of Ulster. He left
On January 26, 1914, the intestate wrote a letter to his said niece in which he intimated his expectation that she would bury him. In pursuance thereof she asked her husband to pay the funeral expenses in an amount in excess of $400. An agreement was made on the day defendant Hawksworth was appointed administratrix that the plaintiff’s claim for $400 was just. Thereafter another agreement was made by and between the same parties that, if plaintiff would refrain from instituting proceedings in the Surrogate’s Court to sell the real estate in Ulster county, she would sell the same and pay him his claim out of the proceeds. This agreement she failed and neglected to keep. The time within which the application for such sale in the Surrogate’s Court might have been made was eighteen months of the issuance of letters of administration. Such was the holding of the surrogate of Ulster county on an application made after the lapse of eighteen months. Meantime the intestate having several years ago made a mortgage on his New Jersey real estate and given a bond and defaulted in the payment thereof the mortgage was foreclosed. In such foreclosure a deficiency was found. Upon the foreign judgment action was brought in this state against
Upon the request of the niece of the intestate it was proper for her husband, the plaintiff, to expend a reasonable amount of money for the funeral services, transportation of the body to the burial place and the burial of it. This duty was cast upon the executor of a deceased by the Revised Statutes and is contained in the Code of Civil Procedure, section 2693. “ Prom this duty springs a legal obligation, and from the obligation the law implies a promise to him who, in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expense thereof as is reasonable. ’ ’ Patterson v. Patterson, 59 N. Y. 583.
The plaintiff here having such a claim against the estate of the intestate had the means of enforcing it by proceeding to a sale of the real estate in the Surrogate’s Court. This right the plaintiff lost in reliance upon the agreement of Julia A. Hawksworth, the administratrix and heir of the intestate, that she herself would sell the real estate at private sale and pay him his $400 out of the proceeds. The effect of the agreement which was partly executed, for the plaintiff did desist from his remedy in the Surrogate’s Court until the statutes barred it, was to create a charge or
The Sakoler case bears out the general rule regarding equitable liens found stated in Lawson’s Rights, Remedies and Practice, section 3094: ‘1 Every express executory agreement whereby the contracting party sufficiently indicates an intention to make some particular property real or personal a fund therein, identified a security for a debt or other obligation or whereby the party promises to convey, assign or transfer the property creates an equitable lien upon the property so indicated, which is enforceable against the property.” Shields v. Whitaker, 82 N. C. 516; Knott v. Manfg. Co., 30 W. Va. 790; Hauslet v. Harrison, 105 U. S. 401; Richardson v. Rust, 9 Paige, 243.
The rule above stated is not in conflict with Van Orden v. Krouse, 89 Hun, 1, relied upon by defendant Rimmelin. There an undertaker who had not been employed and who was a volunteer undertook to impress a trust upon the estate of one Krouse. The court said “there is no legal principle upon which this action can be maintained.” Formerly the trusts of administrators and executors laid within the jurisdiction of courts of equity but lately this jurisdiction has become obsolete. “Partly from prohibitory and partly from permissive statutes, * * * it has in all
The difference between the Van Orden case and that at bar is wide. There is no statute affording warrant to a creditor for funeral expenses to pursue the estate in the possession of the heir. Such statute only relates to the debts of the testator; and the expenses of a funeral are not 11 strictly a debt due ’ ’ from the decedent. Patterson, v. Patterson, supra.
There would be no equity in postponing the claim of the plaintiff ±o that of Rimmelin the deficiency judgment creditor of the deceased. The land covered by the mortgage was' the primary fund for the payment of the debt. The debt or claim for funeral expenses is preferred in payment to all other claims and debts of the decedent. Code Civ. Pro. § 2686; Redf. (5th ed.) 438, and cases cited.
The lien of the plaintiff should at least be held to attach at the date of its making which was long prior to the establishment of a judgment for a deficiency in this state.
There was no equitable principle to found Van Orden’s claim upon. That upon which plaintiff’s claim is founded seems indubitable.
The plaintiff should have judgment as demanded in the complaint.
Judgment accordingly.