11 Paige Ch. 265 | New York Court of Chancery | 1844
The objection that the debts of the mortgagees were not presented to the administrators, during the
But the surrogate was clearly wrong in allowing inortgage debts of the decedent, which were fully secured upon the real estate which had descended to his heirs, to b.e paid absolutely and unconditionally, out of the personal estafe; pro rata with the debts of creditors, whose claims were upon the personal estate only. The revised statutes expressly charge the mortgage debts upon the mortgaged premises, in the hands of the heir or devisee, as the primary fund. (1 R. S. 749, § 4.) The object of the statute was not to deprive the mortgagee of any part of his debt, where the real estate, upon which it is a specific lien, is insufficient to pay the whole of the debt; including the necessary ex
Upon this- principle, the decree in favor of Hamilton is for too -much; instead of being for too small a sum; as he contends in his answer to the petition of appeal. For, although the surrogate has very properly made a deduction of the three several payments of interest, for the purpose of ascertaining the pro rata allowance upon the balance if all the allowances to other creditors are right, he seems to have forgotten that Hamilton bad actually received from the administrators more than his pro rata proportion of such interest; and that the difference, between what was really paid and what he was entitled to pro rata, should have been credited to them, towards his pro rata ^proportion of the residue of his debt, which was not raised out of the mortgaged premises. The same mistake has been made by the surrogate in respect to the two payments of interest, of $180 each, which were paid by the administrators, for interest upon the Bradley mortgage, in November, 1835, and May, 1836, before that mortgage was assigned ; even if Bradley, the assignee, was entitled to a pro rata allowance upon the whole balance of the mortgage debt, without reference to the value of the real estate upon which that mortgage is a lien.
There is not the least doubt, from the testimony, that the mortgaged premises are, and always have been, more than sufficient to pay the whole of Mrs. Cornell’s first mortgage upon
Even if the real estate was not sufficient to pay any part of the third mortgage, to Corbett, the surrogate has made a mistake in computing the amount of Corbett’s pro rata share of the personal property. For, to ascertain Corbett’s share, the surrogate should have taken the whole of his debt, including the $1000 paid by the administrators, in June, 1836, and should have made a pro rata allowance upon the whole, as his share of the personal estate. And then the administrators should have been credited with the $1000; as so much paid to him on account of such share.
I am satisfied, however, from the evidence, that if Corbett had proceeded to foreclose his mortgage immediately after the last payment became due, on the first of May, 1836. the real estate,
Neither party makes any complaint as to the decision of the surrogate; in relation to the payment of interest on the mill pond lot, except as to the deduction pro fata; nor is there any proof as to the value of that property. In equity, upon such a contract, the land which the decedent had contracted to buy but which had not been conveyed, would be considered as real
The appellants are right in supposing that the decision of the surrogate is erroneous in relation to the Hurst debt. For the purpose of ascertaining the pro rata dividend all the debts, due to creditors of the estate, which are neither secured by a mortgage upon real property, nor entitled to a preference in payment, should be added together, including the balances of mortgage debts not fully secured; and the per centage which the personal estate will pay of that amount should be computed, although some of those debts,had been previously paid by the administrators, either wholly or in part. From the pro rata dividend of each debt, when thus ascertained, there should be deducted the sum or sums already paid by the executor or administrator; and the.surrogate should only decree payment of the deficiency of each creditor’s pro rata share which he has not already received. Here some of Hurst’s notes were paid in full, and others were partially paid; leaving a balance due upon the last note of $224,71, if the surrogate’s return is correct. The administrators had previously paid, upon this and other notes of Hurst, something like $4000; which was considerably more than his pro rata share of his whole debt. Yet the .surrogate has allowed the administrators, in settling the pro rata allowance, only a part of the previous payments; and has decreed a payment to Hurst of the further sum
A mistake has also occurred in the amount decreed to be paid to Barclay & Livingston; which is for the whole pro rata allowance upon the balance of their account, without deducting the $24,08, which the administrator paid him beyond the pro. rata proportion, upon the previous payments to them.
The decree is also erroneous in computing the pro rata allowance upon the amount of the debt due to F. J. Betts. As this debt was an offset against the larger sum due from him to the decedent, and which has been charged to the administrators, they should have been allowed in full for the debt paid to him, which was a proper subject of set-off. In other words, the smaller debt due to him, should not have been taken into the account at all, in ascertaining the amount of the debts upon which a pro rata allowance was to be made; but it should have been offset, and deducted from the amount charged to the executors as having been received from F. J. Betts. An error has also occurred in relation to the debt due to Brown & Betts; which debt should have been offset against the smaller debt due from them as mentioned in the inventory. And the full amount of the debt due to the administrators should have been allowed to them, without deducting any thing for the pro rata allowance thereon, or carrying that debt into the estimate. The balance only should have been carried into the estimate, and the pro rata allowance cast upon that. A similar error occurred in relation to the debts due to and from McConn & Sherman. They should have been offset, and the pro rata merely cast upon the balance due from the estate. The pro rata allowance appears to be cast right upo'n the balance due on Sophia Cobb’s note, after deducting the offset of $10 due from her to the estate, as mentioned in the inventory. But the surrogate, by mistake, has neglected to deduct the $10 thus offset, from the amount of the inventory charged to the administrators.
The proof shows that Hertell’s debt was much larger than the amount paid by the administrators; and that the payments made by them to him were less than his pro rata allow-
It appears, from the testimony, that there was an error in posting about $68, to the account due from Dillon to the estate, instead of posting it to the account of Day; to whom that sum was properly chargeable. The administrators, by mistake, received the whole amount of Dillon’s account, including this erroneous posting; but when they afterwards discovered the mistake, they charged it to Day’s account, and received the same from him. And because the administrators had not yet paid the $68 back to Dillon, to whom it rightfully belongs, the surrogate has charged them with the $68 twice, as assets in their hands for. the creditors of Betts. This is clearly erroneous. For Dillon is entitled tó a return of the money paid by mistake. If he had been aware of the mistake at the time he made the payment, or if he had given up his claim to it, for the benefit of the estate, after being apprised of the facts of the case, the creditors would have been entitled to it, as assets in the hands of the administrators for the benefit of the creditors. But the facts sworn to in this case will not warrant such an inference. And the court cannot presume, from any thing that, appears in evidence here, that the administrators intend to defraud Dillon, by withholding from him this over-payment, even if they have the legal power to do so. But he certainly can never recover it .back, if the surrogate has rightfully decreed that it belongs to the creditors of Betts.
The widow was entitled to her reasonable sustenance out of the estate of her husband, during her quarantine, by the express provisions of the revised statutes. (1 R. S. 742, § 17.) And the provision being general, it must be construed to apply to the case of a solvent as Well as of an insolvent estate. But the allowance is Only intended to apply to the sustenance of the widow herself. No provision is made by law for the maintenance of the children of her deceased husband, out of an insolvent estate, beyond the exempt articles allowed to the widow for that purpose.
The decree of the surrogate must be reversed; with costs to the appellants, to be paid out of the estate in their hands. And the proceedings must be remitted to the surrogate of Kings county, with directions to restate the accounts in conformity to
The surrogate must be directed, in restating the accounts, to correct any errors in computation merely, which he shall discover to have been made in his former statement of the accounts, although not embraced in the errors above referred to in this opinion; whether such errors are in favor of the appellants or against them.