165 Misc. 78 | N.Y. Sur. Ct. | 1937
When this testator in 1932, after having given merely the common direction, in general terms, to pay all his just debts and funeral expenses, then expressed his last will also to be that a specified parcel of his land, on which there was a mortgage
There could be no doubt that the merely general direction given by a testator to pay first all his debts did not include a debt which he himself had not incurred and did not personally owe"— as where he had taken title to the land merely “ subject ” to the mortgage, even though the mortgage contained, as most mortgages now commonly do, an express covenant to pay the debt represented by the bond or note to secure which the mortgage was originally given. (See Biedka v. Ashkenas, 119 Misc. 647.) Such a covenant to pay must be express; for in its absence we cannot infer from the mere pledge, mortgage or lien, a promise to pay the sum intended to be secured (Real Prop. Law, § 249); and the same statute confined the remedies of the mortgagee in such case to the property mentioned in the mortgage; as if the mortgage itself, though legally only a security by collateral hen, were really “ the principal thing ” as it is “ ordinarily thought ” to be (Cochrane v. Hawver, 54 Hun, 556); although the result might better have been accounted for on the equity rule on the application of assets.
So, it has been held that even where the testator did assume and agree to pay the mortgage debt, still if his grantor was not himself personally liable to pay it, the testator’s promise to this grantor was one that had no legal basis; and the mortgagee, not having been a party to the assumption agreement, could not take advantage of the grantee-testator’s promise to his grantor to pay off the mortgage debt. (Pratt v. Fay, 97 Misc. 434. See, also, Ross v. Davis, 138 id. 863.)
Where, however, the testator, before he made his last will, had unquestionably incurred the debt, secured by mortgage on the land devised, the common-law rule (19 A. L. R. 1421) was that the devisee of the land could resort to the movable property of the testator, as the primary fund, for the purpose of having it applied to reheve him of the burden of that debt, by paying it along with all other debts of the testator. Another reason for so ruling, aside from the long- and well-established rule of holding the personalty primarily hable for testator’s debts, is that the personal estate of the decedent had been saved from depletion by reason of the giving of the mortgage. >
In 1894, before the words “ or testator ” were inserted in the second place where they now appear in this section, the court, in Matter of Kene ([18941, 8 Misc. 102), construed this section more liberally than was done in the Lamport v. Beeman case. In the Kene matter it was held that where the devisee was not a relative of the testator, the word “ ancestor ” in this section should be construed to mean a predecessor in title, rather than in blood, in denying the State’s claim that the devisee had the right to resort to the executor or administrator of “ his ancestor ” to have the mortgaged debt paid off out of the personalty, in order that the land transferred by the devise could be taxed at its clear value. ¡ From the standpoint of construing, it appears to me that the “ assumed ” mortgage debt falls so clearly within the scope of this section, designed to make the devise carry its own burdens, according to the long- and well-established rule to that, effect, that little weight should now be given to the argument for limiting this section to its wording on the ground that it is in derogation of the common law, and that when it used the word “ executed ” it meant' to exclude all other types of debts that were hens on the devised land by way of mortgage. j
The facts herein are undisputed. This testator, in two instances before he made his last will, assumed and agreed to pay as part of
Testator had no understanding with the first mortgagee at the time of the purchase from Ryan. The contract of purchase, however, was a valid one made for the benefit of the first mortgagee; and was not vitiated, as between vendor and vendee, either by any lack of consent, as distinct from immediate privity with the first mortgagee, nor by any such facts as appeared in the case of Genesee Valley National Bank & Trust Co. v. Bolton (248 App. Div. 530). After the sale had been completed, the first mortgagee allowed the testator time to pay the first and second installments of the principal, without anything being promised for such forbearance that. would make a new consideration as between them. 1
In the extensive briefs filed herein no stress is laid on the fact that the testator gave his own bond and second mortgage to his grantor at the same time that he assumed and agreed to pay the existing mortgage debt to the first mortgagee. In this connection, it might be said that when testator executed his $1,300 mortgage to Ryan, reciting it to be “ second and subsequent to ” a first mortgage held by Havens — which as part of the same transaction he assumed and agreed to pay Havens — the testator, in effect,
Now, the executor, to whom individually this specific parcel has been devised in general terms, without any reference to the mortgage, argues that this first mortgage was not “ executed ” by his devisor, and should be paid off out of the personal assets. The special guardian for the infant residuaries argues that in these circumstances the devised land is primarily liable, even if this case were not within the meaning of this section as it read in 1932.
This presents the question whether this section 250 of the Real Property Law, as it stood before the amendment of 1937, applied to a prior grantor’s mortgage debt which the testator assumed and agreed to pay as part of the purchase price thereof. There is no claim that there is here any “ break in the chain ” of assumptions, which would bring the case within the ruling in Pratt v. Fay (97 Misc. 434, supra). No direct ruling in any jurisdiction has been cited by the executor devisee in support of the distinction he claims to exist between an “ assumed ” mortgage and one •“ executed ” by the testator. On the merits, there does not appear to be any substantial reason for making any such differentiation. Obviously, such an assumed mortgage debt becomes quite as much a personal obligation of the testator as would be any bond secured by a mortgage “ executed ” by him, although the section never referred to the bond or principal obligation. It uses the word “ mortgage ” in a broad sense, to signify an obligation including a collateral lien on land.
The statute presumes that had the testator expressed himself more clearly in his last will he probably would have placed the burden of the debt on the devisee; or else he should have expressly directed otherwise, as was done in Matter of Storey (134 Misc. 791). There is nothing in the will of this testator, aside from the ineffectual direction, in general terms, to pay his just debts, that indicates any intention on his part other than that which the statute presumes he entertained; nor would it matter had this mortgage debt been created or assumed after the date of the will, June 11, 1932, because for over a century the statutory rule has also been that neither an agreement made by a testator to convey land,- nor a charge or incumbrance to secure the payment of money, imposed thereon by a testator after having made his last will devising the same land, shall be deemed a revocation of the prior will; but that the property
My conclusion is that this executor devisee is not entitled to have any part of his devisor’s estate, real or personal, applied to free him from the obligation to the estate, incurred by the acceptance of the devise, to pay, out of his own means, to the first mortgagee the $2,000 and interest since the devisor’s death, due the latter on the first mortgage debt; or else stand to forfeit the land in foreclosure, without any right of recourse to the devisor’s estate.
Let the decree of judicial settlement herein be framed in accord with this decision, and be entered.