180 A.D. 398 | N.Y. App. Div. | 1917
The facts were stipulated before the surrogate, and the only oral evidence that was received was the testimony of experts as to the value of the real estate.
Max Rechnitzer died intestate in the county of New York on March 10, 1912. Letters of administration were duly granted on December 16, 1913, upon a petition presented within two years after decedent’s death. The decedent prior to his death was seized of two parcels of real estate, one of which was held by the decedent and his wife as tenants by the entirety, and was incumbered by a mortgage executed by himself and wife to secure the payment of their joint and several bond for the sum of $13,500, which bond and mortgage were duly assigned to the appellant on June 17, 1913, for the full consideration of $13,500. In January, 1914, the appellant commenced an action to foreclose. this mortgage in the Supreme Court, New York county. The administrator and the decedent’s widow were made parties defendant and personally served with process. This action resulted in a judgment of foreclosure and sale, upon which a sale was had and a deficiency judgment entered for $3,807.03. An execution was thereafter issued against the property of the widow of decedent and returned wholly unsatisfied.
Of the other parcel decedent was seized in his own right. On May 10, 1912, two months after the decedent’s death,
From the foregoing facts.it would appear that every requisite existed to give jurisdiction to the Surrogate’s Court, and that it was a proper case to make a decree for the sale of this property for the purpose of paying debts and costs of administration. (Code Civ. Proc. §§ 2702, 2703, 2705,
Section 2714 expressly provides: “A conveyance of real property, made pursuant to this title, does not affect, in any way, the title of a purchaser or mortgagee, in good faith and for value, from an heir or devisee of the decedent, unless letters testamentary or letters of administration, upon the estate of the decedent, were granted, by a Surrogate’s Court having jurisdiction to grant them, upon a petition therefor, presented within two years after his death,” thus establishing that where such letters are granted upon a petition presented within two years after his death, the conveyance is good as against purchasers in good faith and for value. Such was the construction given to prior statutes.
In Hyde v. Tanner (1 Barb. 75, 80) the court said: “ It is not intended to be said that the heirs or devisees may not alien prior to the expiration of the three years. They may sell and convey at any time after the death of the testator or intestate. But if they convey before the expiration of that period, the lands pass subject to the power of the surrogate to direct the same to be sold for the payment of debts. And in case the exercise of that power becomes necessary, by reason of a want of personal assets, the title made under the surrogate’s sale will be paramount to all titles made by or through the heirs or devisees, and will convey the estate precisely as it was left by the decedent.”
In Jewett v. Keenholts (16 Barb. 193), in a proceeding to sell a decedent’s real estate for the payment of his debts, it was held that the purchaser was entitled to a crop of grain which had been sown after the decedent’s death under an agreement by a third party with the devisee to plant and grow the same on shares. The court said (p. 195): “ Upon application to the surrogate, at any time within three years, and showing that the personal estate is insufficient to pay the debts of the decedent, that officer is authorized to direct" a
In Platt v. Platt (105 N. Y. 488, 497) the court said: “ The debts of a decedent can be ordered to be paid out of his real estate or by his heirs or devisees only in the manner provided by statute. During three years after his death, his creditors have a kind of statutory lien upon the real estate left by him, and such real estate cannot be so aliened by his heirs or devisees during that time as to defeat the claims of creditors thereon.”
In Matter of Kinn (136 App. Div. 852, 854) a purchaser from a devisee for a valuable consideration took title to decedent’s real estate within three years after the issue of letters testamentary, and proceedings were thereafter brought for the sale of the property to pay decedent’s debts. The court said: “Taking the premises under these circumstances, and without making any inquiry so far as appears, to determine whether the personal property was sufficient to pay the debts, the appellant is not an innocent purchaser; he must
It is clear, therefore, that nothing that has been done by the heirs or the purchaser from them or subsequent lienors or owners can defeat or impair the creditor’s right to have -sold this real estate and have his debts satisfied out of the proceeds of the sale in priority to the mortgagees and the owner for improvements thereon.
The only question that in the instant case could present equitable considerations would be the right of the present owner to be repaid the amount of the incumbrances and liens that were on the property at the time of the decedent’s death by the principles of subrogation. As to these the appellant offered before the surrogate and renews his offer in this court that these payments may be reimbursed first out of the proceeds of the sale. As to the liens for moneys advanced for improvements or the value of improvements, the owner or the mortgagees have no legal or equitable right to priority of payment over the appellant. They took the property, advanced the money, and constructed the buildings subject to the lien of the creditors of the deceased.
The decree must, therefore, be reversed, with costs to the appellant, and a decree entered directing the administrator to sell the premises and pay out of the proceeds thereof to personal representatives of Walter I. Scott the sum of $6,444.58, with interest thereon from August 16, 1912, and pay to the petitioner the sum of $3,807.03, with interest thereon from May 20, 1914, and after paying the expenses of administration, pay the surplus if any to the owner or mortgagees as their interest may appear.
Clarke, P. J., Scott, Smith and Shearn, JJ., concurred.
Decree reversed, with costs, and a decree directed to be entered in accordance with opinion. Order to be settled on notice.