30 A.2d 827 | N.J. Super. Ct. App. Div. | 1943
The only question argued on this appeal is whether rents in the hands of the administrator with the will annexed of Caroline H. Boyle, deceased, are available for the payment of decedent's debts. The rents have been collected by the administrator under the authority of R.S. 3:17-8. The lands of which the rents are the income, were devised by Miss Boyle as part of her residuary estate, to nieces and nephews. Two *150 provisions of her will should be mentioned. One is a direction "that all my just debts and funeral expenses be duly paid as soon as conveniently can be after my death." The other is a naked power given to the executors to sell and dispose of the real estate. Shortly after the death of testatrix in 1937, the Orphans Court decreed the estate insolvent or likely to become insolvent. There has been no sale or order for sale of the land, or any step in the proceeding whereby the Orphans Court took the land into its custody.
The statute under which the administrator has been collecting rents authorizes him to use the money for the preservation of the property and directs that the balance be disposed of according to law or the will of the deceased, as the case may be. The act does not affect the ultimate destination of the rents. If they would not be available to creditors in the absence of the statute, they remain unavailable. Freeth v. Rule,
Rents are an incident of land and at the death of the owner, go with the land to his heir or devisee. Condit v. Neighbor,
Although the personal estate of decedent is insufficient to pay debts, and there is a proceeding for the sale of land to pay debts, the heir or devisee is entitled to the rents until the land is actually sold. R.S. 3:25-21, c. Paletz v. CamdenSafe Deposit Co.,
There is only one other factor in the present case, namely, the direction for the payment of debts found in the will. The direction operates to charge the debts on the lands of testatrix. Such a charge constitutes an equitable lien which a creditor may enforce in Chancery. McKinley v. Coe,
In Clift v. Moses (N.Y.), 22 N.E. Rep. 393, where land was devised, charged with the payment of debts generally, the court said of the charge, "Being a lien, equity would enforce it upon the same principles that it enforced other liens, in case it should be made to appear that the estate was insolvent and that the real estate was insufficient to pay the debts. The court might appoint a receiver to take charge of the real estate and to collect the rents, issues and profits. But we are aware of no case in which equity in the enforcement of liens against real estate has required rents, issues or profits previously received or collected, to be accounted for and paid over to apply upon the lien, unless it may be under circumstances in which a trust had been created or implied." *152
Coddington v. Bispham,