15 Misc. 202 | N.Y. Sur. Ct. | 1895
John Plopper died intestate, at the town of Leon, July 24, 1891, leaving him surviving his widow, but no descendants. He was the owner of the real estate described in the petition, consisting of a dwelling and small tract of land, ■of the value of $600. The widow was appointed administratrix
The contestants object to the making of a decree for the disposition of such real estate, asserting that the proof fails to show insufficiency of personal estate to satisfy such indebtedness, and that, the widow having voluntarily intervened and paid the indebtedness to Snyder, she is not a creditor of the estate, within the meaning and purview of the statute.
The evidence fails to show the particular circumstances under which the various payments were made by the widow to Snyder upon this note, nor is there any direct proof that such payment made prior to' the death of the intestate was at his request; but it does satisfactorily appear that she paid the entire amount of’ such note from her. individual property, and that, upon such payments being completed, Snyder delivered the note to her,, and she presents the same, with proper proof of its execution by the intestate, as evidence of her demand against the estate.. Had Snyder continued to hold such note there could, of course, have been no question of his right to have maintained this proceeding to enforce its collection from the real estate, in case of insufficiency of personal assets, nor could the right of the widow to resort to the same remedy have been questioned had the proof distinctly shown that she had purchased the note of Snyder j
It is undoubtedly true that the doctrine of subrogation should only be applied when justice will be promoted thereby, and that one who is a mere volunteer may not invoke its aid. Acer et al. v. Hotchkiss, 97 N. Y. 395.
One who pays a debt for which he is not personally bound, and which is not a charge upon his property, is, not entitled to be subrogated to a lien which the creditor had upon the estate of the debtor. Wilkes et al. v. Harper et al., 1 N. Y. 586.
But the case at bar hardly calls for an application of the principle enunciated in the authorities cited. It is of but little consequence that the widow paid this indebtedness to Snyder before her appointment as administratrix, inasmuch as she was siibsequently appointed, and seeks, to maintain this proceeding in that capacity. The situation is simply this: The husband, in his lifetime, purchased the real estate in question, and gave a note to Snyder as part payment of the purchase price. The widow paid this note to Snyder. The contestants, who are dis^tant and collateral relatives of the intestate, insist that she is not entitled to reimbursement out of the land, but that they, as the heirs-at-law of the intestate, are entitled to hold this real estate discharged from all obligations to make such reimbursement. The equitable features of such claim are not very apparent. It would result in, great injustice to the widow to hold that she was to lose, and the contestants to gain, the benefit of this payment made by her.
In the case of Ball v. Miller, 17 How. Pr. 300, it was held that where, upon the judicial settlement of the accounts, of an administrator, a balance was found due to the representative from the estate, such balance^ so far as it consisted of, or was caused by, the application of the moneys of the estate to, the payment of debts existing against the intestate in. his lifetime,
The case o-f Ball v. Miller is cited and recognized as authority in Duntz v. Duntz, 44 Barb. 461.
The only satisfactory conclusion which can be arrived at from a careful review of all the authorities, taking into consideration the obvious equities of the widow’s claim, is that she should be permitted to recover, from the proceeds of the sale of the real estate, not only the funeral expenses paid by her,
In regard to the remaining proposition, that the evidence fails to show insufficient personal estate for the payment of these debts. The title to the real estate, upon the death of the owner intestate, vests immediately in his heirs; and it can be taken for the payment of debts only by virtue of the statute, and the statutory provision must be strictly followed. To justify a surrogate’s decree directing the sale of real estate of which the intestate died seized for the payment of his debts, it must be made to appear that all the personal property of the decedent which could have been applied to the payment of the decedent’s debts and funeral expenses has been so applied, or that the administrator has proceeded with reasonable diligence in converting the same into money, and applying it in such payments, and that it is insufficient for the payment of the same. Kingsland v. Murray, 133 N. Y. 170.
The judicial settlement of the accounts of the administrator was not a jurisdictional requirement before instituting this proceeding; but where no such settlement has been had, the administrator assumes the burden of shewing affirmatively, as a part of her case, the facts required by section 2159 of the Code. Matter of Howard’s Estate, 11 Misc. Rep. 230.
Then the question arises, does the evidence in this, case satisfactorily show such insufficiency of personal assets?
The petition alleges that the intestate owned no personal property at the time of his death. It appears from the evidence that, for many years prior to his death, the intestate and the petitioner had resided upon a farm in the town of New Albion, and that such personal property as was upon the farm had been produced and raised upon or paid for out of the avails of the farm; that intestate originally contracted in his own name for the purchase of the farm, but being unable to meet the payments, the contract was foreclosed, and upon the sale under such foreclosure the petitioner became the purchaser; and that for many
Appraisers will accordingly be appointed, and, upon the filing of their report, a decree will be made for such disposition of the real estate as such report shows to be advisable.
Decreed accordingly.