2 Bradf. 74 | N.Y. Sur. Ct. | 1851
The testator by his will gave “ the rents, income, and profits of all his estate, real and personal, to his wife, and son George, equally to be divided between them during their joint lives,” with remainder in fee to the issue of George, or, in case he died without issue, the remainder to be distributed among other legatees ; for the purpose of which distribution a power of sale was given to the executors. On being cited to account by some of the parties entitled to the residue on the contingency of George dying without issue, the executrix claimed, in her account, certain credits for taxes, repairs, and interest on mortgages, paid by her out of the principal of the estate.
The will authorizes the executors to take charge of and rent the real estate, collect the rents and income, invest the personal estate in stocks, or on bond and mortgage, collect and receive the income and profits thereof, and pay and divide the same between the testator’s son and wife for life.
Hie rule in this State is, that the real estate must bear its own burdens, and the personal estate cannot be resorted to for the purpose of discharging bonds and mortgages. But here the testator has thrown his whole property into one fund, and designed that his wife and son should receive the entire net income for life. There is no strife between the two classes of property. The same parties are interested in both equally. The testator’s intention would be answered by the payment of a mortgage on the real estate, if it were a good investment, or necessary for the preserva
Before letters testamentary were issued, No. 550 Pearl-street, belonging to the testator, was sold on foreclosure, and the executrix received the surplus moneys remaining after payment of the incumbrance. This surplus is part of the capital of the estate, and must be accounted for as such.
It appears that in the life-time of the testator, he held a bond and mortgage of S. N. Burrill, secured on real estate, which the latter subsequently conveyed to the testator. The legal effect of the conveyance was to cancel the mortgage ; and the mortgagor, who was examined on the part of the objectors, also states that the deed was given and received in discharge of the entire claim. The circumstances are sufficient to exonerate the executrix from any liability for her alleged misconduct in failing to prosecute the mortgagor, if he be chargeable at all on his bond. The bond and mortgage have never been in her possession; and in view of the whole transaction, it would not be justi
The executrix has been at fault in not investing the personal estate, as directed by the will; and the fund mnst be invested in the mode prescribed by the testator, as well because he has so directed, as for the security of the parties who may ultimately, upon a certain contingency, be entitled to the capital of the estate.