7 Paige Ch. 591 | New York Court of Chancery | 1839
The two questions which present themselves for consideration on this appeal are; whether as between the estate of S. Jumel the intestate, and the owner of the mortgaged premises at the time of his death, the land was the primary fund for the payment of the mortgage debt ? and if so, whether the surrogate was authorized to settle this question between the parties, and to disallow the claim of the administratix to a credit for the amount paid by her for the principal and interest due on the mortgage 1 Previous to the revised statutes, where a decedent died seized of real estate which he had himself mortgaged, and where he was also personally liable to the mortgagee for the payment of the mortgage debt, his personal estate was the primary fund for the payment of the debt; as between the heirs at law or devisees of the mortgagor and the distributees of the personal estate. This case, however, does not depend upon that principle, as this is not a contest between different owners, of the personal property and the real estate, which belonged to the decedent at the time of his death. The question here arises between the estate of
The surrogate, in stating the account, has credited the appellant with the amount paid by her upon the bond and mortgage to Berger, and has charged her with the same sum as a debt due by her to the estate. But the result is the same as if he had merely refused to credit her with those payments upon the ground that she was not authorized to pay them out of the estate, when she had, in her own hands, the real estate mortgaged ; which real estate was primarily liable, and was an ample fund for that purpose. The appellant cannot, therefore, complain of this mode of stating the account, as she was not prejudiced thereby.
The sentence and decree of the surrogate is affirmed, with costs, to be paid by the appellant. And the respondents are also entitled to interest on the sums awarded to them respectively, by the surrogate, by way of damages for the delay occasioned by this appeal. The cause may be retained here, and an execution may be issued out of this court, to collect the amount due the respondent, including such interest and the costs.