10 N.Y.S. 264 | N.Y. Sup. Ct. | 1890
The appeal is from that portion only of the decree of the surrogate which credits to the executor the full amount claimed by him in Schedule C of his accounts, being the sum of $3,844.15, and which adjudges that there is a balance in his hands of only $540.10, and which directs the executor to pay to the commissioners of Mt. Hope the sum of $100, the interest of which last-named sum was to preserve in good order a burial lot in Mt. Hope cemetery, and which requires the executor to pay the balance of the fund in his hands to the respondent Adelia J. Babcock, one of the legatees named in the will, or deposit the same with the treasurer of Monroe county. The questions presented by this appeal arise upon the third provision of the last will of Bosetta D. Oviatt, which is as follows: “3rd. My said trustee I hereby direct to sell and to convert into money my frame house, and the lot situate upon the north-east corner of South avenue and Comfort Sts. in said
An elaborate argument has been made by the learned counsel for the appellant that the legacies mentioned in clauses 1 to 6, inclusive, in the third paragraph of the will, above quoted, stand on an equal footing, and, inasmuch as there is a deficiency of assets to pay them all in full, they must be paid ratably, and that consequently the payment of the mortgage upon the block mentioned was unauthorized. An answer to this argument is, in brief, that the testatrix was indebted by her bond for the payment of the amount secured by the mortgage resting upon her South St. Paul Street store, and, being so indebted, she did by her will take the ease out of the operation of the statute, and charge the payment of such indebtedness expressly upon the avails of the sale of the house and lot on the corner of South avenue and Comfort street. Except for the statute (1 Rev. St. p. 749, § 4; 6th Ed. vol. 2, p. 1130) the devisee could not be obliged to satisfy the mortgage out of his own property without resorting to the executor. But, where there is an express direction in the will of the testator that such mortgage be otherwise paid, the same is obligatory upon the executor as the payment and discharge of any other indebtedness of the decedent. Searles v. Brace, 19 Abb. N. C. 17; Cochrane v. Hawver, 7 N. Y. Supp. 907. In no sense can this clear and positive direction for the payment of an outstanding indebtedness be deemed a separate and independent bequest or legacy to the son Wilson D. Oviatt and his children. The question, therefore, which has been discussed by the counsel for the appellant, does not, in our judgment, arise upon the reading of this will. It follows, therefore, that the decree of the surrogate should be affirmed, with costs to the respondents, payable out of the estate.
All concur.