10 Paige Ch. 158 | New York Court of Chancery | 1843
The arrangement proposed in the answer, in relation to the lot of the complainants which was conveyed by the decedent in his lifetime, appears to be proper and equitable,'and is sanctioned by the court. The decedent could only convey his life estate in the lot, as tenant by the curtesy ; and the complainants, if they had thought proper, could have immediately brought their suit against the purchaser for the recovery of the premises. The latter would then have had a remedy over against the personal representatives of the decedent, upon the covenant of warranty. But as the complainants would only have been entitled to recover the mesne profits of th.e premises subsequent to the death of their father, the amount of the purchase money and interest from that time, in addition to the costs of the litigation, would constitute the damages for which the estate of the decedent would be liable on the covenant. (Staats v. The Executors of Ten Eyck, 3 Caines' Rep. 111. Bennett v. Jenkins, 13 John. Rep. 50.) The complainants, upon confirming the title to the purchaser, are therefore equitably entitled to be substituted as creditors of the estate to that extent, but no further.
The claim to the mill stones, bolts, and other machinery in the flouring mill, by the administrators in this case, is founded upon the supposition that the revised statutes have established the rule that every thing annexed to a building which is used for the purposes of trade, or of manufacture of any kind, and which is not necessary to support the walls of the building, goes to the personal representatives, and not to the heirs of the owner, upon his death. The revised statutes, in attempting to define what are to be considered assets in the hands of executors and administrators, to be applied and distributed-as personal estate of the decedent, contain, among other things, the following provision, as the fourth subdivision of the sixth section of the article
It was impossible, however, to define, in a short sentence of three lines, what was to be considered a part of the freehold itself, and what were mere fixtures or things annexed to the freehold for the purposes of trade or manufacture. We must therefore still go back to the common law, and to the decisions of the courts, for the purpose of ascertaining what is a substantial part of the freehold, and what is a mere fixture or thing annexed to such freehold. We must also resort to the same sourbes of information1 to ascertain what is to be considered a part of a building, and what is in its nature mere personal property and only annexed to such building temporarily for the purpose of trade or manufacture. And I think, in this case,- it may be safely assumed that it could not have been the intention of the legislature to authorize the personal representatives of the decedent, who owned this grist mill in fee at the time of
The claim of the complainants to have the incumbrances upon the real estate, which were created by the testator himself, discharged by the application of his personal property for that purpose, cannot be sustained. It is true the revisers, in suggesting a reason why the former law should be changed, state one which does not necessarily apply to the case of an absolute intestacy. But the language of the section which they reported, and which the legislature adopted without alteration, clearly shows that they intended to make the new rulé applicable to intestate estates, as well as to those cases in which the decedent has disposed of his property, or a part of it, by will. (See 1 R. S. 749, § 4.) The mortgages therefore must be paid off by those who are entitled to the real estate upon which they are a lien.
It does not appear from the pleadings in this case whether the widow of the decedent joined with her husband in these mortgages, or whether they were or were not given before her intermarriage with him. But it is stated in the bill, and admitted in the answer, that the two mortgages upon the grist mill were given to secure the payment of the purchase money. In relation to that portion of the property she takes her dower subject to the mortgages. She must therefore keep down one-third of the interest,
A decree must be entered declaring the rights of the parties accordingly; and directing a reference to a master to take the account of the estate in the usual form. And the question of costs and all further questions and directions are reserved until the coming in and confirmation of the master’s report.
The widow having remarried pending the suit, a suggestion' to that effect is to be made in the decree; with a direction that the proceedings be hereafter carried on against her and her husband as defendants.