3 Redf. 491 | N.Y. Sur. Ct. | 1879
The claims made in this case are novel. None of them existed in the hands of the claimants at the time of the death of the testator, but have arisen since, and are based upon the fact that they have paid, or will be obliged to pay, moneys which the executors should have paid, and which had a preference of payment over ordinary debts. For convenience of examination I will make two classes of these claims. In the first are those of the executors of Lockwood, the executors of Miller, Leviness and Gillilan. They, except Gillilan, claim to have paid taxes assessed against the estate of the deceased during his life time, under the following circumstances: They have foreclosed mortgages since his death executed to
There can be no question but that these taxes were preferred debts, to be paid by the executors in due course of administration. (2 R. S., 87, § 27.) Had they paid them and then claimed credit therefor in their account rendered, they would, doubtless, have been allowed; but that théy have not done, and this court is now asked to direct them to do so. Although it was their duty to have paid them, yet I apprehend, where they are otherwise properly paid, that duty ends. I can find no case, and have been referred to none, which determines that the payment of taxes by a person having a subordinate lien entitles him to be subrogated to any rights other than those affecting the lien upon the land. These taxes were, in effect, paid out of the estate, the terms of sale in every case, save one, making provision therefor. Had the property
The books are full of cases showing that courts of general jurisdiction have long exercised the power to enforce the right of subrogation. Among the more recent ones, counsel have referred me to Silver Lake Bank v. North (4 J. Ch., 370); Eddy v. Traver (6 Paige, 521); Kortright v. Cady (23 Barb., 490); Robinson v. Ryan (25 N. Y., 320); Patterson v. Birdsall (6 Hun., 632); Dings v. Parshall (7 id., 522); and Ellsworth v.
Now, if it be true that payment cannot be decreed to a voluntary assignee, I conclude it cannot be done to one to whom equity operates a virtual assignment or transfer. The Ecclesiastical Courts formerly acted under the rules of the civil law and had no common law jurisdiction. Our like courts are now declared to have certain legal and equitable powers, but their exercise is limited to cases and matters springing directly from statute law. The right of substitution or subrogation had its source in the civil law, and its benign principles have long been acknowledged and exercised by courts of equity; but I find no statute conferring
The case of Jumel v. Jumel (7 Paige, 591), cited by counsel as establishing the power of the Surrogate to determine an equitable as well as a legal claim, and to dispose of a claim of right to subrogation, was a case involving the consideration of a claim made by the administratrix. The Chancellor stated that “the only question arising upon the appeal was, whether the administratrix was entitled to be allowed, upon the settlement of the account and the distribution of the estate, for the principal and interest upon a bond and mortgage paid by her ” under circumstances which he proceeds to state. It will thus be seen that the Surrogate, having by statute full power to try and adjudicate a claim of an executor or administrator against the estate, had complete jurisdiction over the matter and could, in considering it, dispose of any legal or equitable question necessary to its proper adjustment, whether involving a voluntary assignment or an equitable transfer. The case of Gardner v. Gardner (id., 112), was a similar one in so far as the point under consideration is concerned. It is clear that the learned Chancellor did not there intend to say that Surrogates had the general power of determining a question of right of subrogation; although, from the fact that he uniformly held they had the power to hear and adjudicate disputed claims against an estate, he would have been consistent in so holding in reference to such claims. But the Court of Appeals, in Tucker v. Tucker (4 Abb. Ct. App. Dec., 428), has established a different rule on the subject.
Had all of these mortgagees entered judgment for deficiency, they could then have come in with the other creditors and shared with them equally in the assets. Those of them who have obtained such judgments may avail themselves of that right.
To recapitulate, I determine, then: 1st, that I have no power to direct a substitution or to subrogate one person to the rights of another in such a case as this; 2d, that I have no power to adjudicate a disputed claim, whether the dispute concern a question of law or of fact; and, 3d, that the claimant Menk, if the executor, must fail, for the reason above stated. There is another ground for the rejection of the claim of Leviness; the tax was not assessed prior to the death of the testator. Independent of that fact, it should be rejected on the other grounds.
Decree accordingly.