66 N.J. Eq. 70 | New York Court of Chancery | 1904
In this case I reach the following conclusions upon the issues raised in the exceptions to the master’s report and the application at the hearing to open the proofs:
First. The application of petitioner made at the hearing on the exceptions to open the proofs must be denied. It appears by the evidence taken before the master on the first reference to him that petitioner then claimed that the note in question was signed in the presence of Mrs. McKinley. Necessary dili
Second. The petitioner’s testimony as to the transactions with the testatrix in relation to the note upon which her claim is based is admissible. This question arises upon the application of the petitioner as a creditor of the testator, claiming that her debt is charged by the will upon the lands which have been sqjd in proceedings in partition. The bill for partition was filed by one of the respondents, a residuary devisee, against the other respondent and the petitioner, the other devisees. The lands have been sold and the proceeds paid into court. The petitioner is also the executrix of the will, and upon her previous application as executrix under the chancery rules 155, &c., for the payment to her as executrix of sufficient money to pay the debts of the testatrix, including the petitioner’s own claim, the application was denied, so far as it applied to this debt, because at the time of the application recovery against her as executrix was barred by the statute of limitations. I held that, although the executrix might, so far as the personal estate was concerned, waive the statute, she could not affect the rights of heirs or devisees by her waiver, nor could she reach the proceeds of sale of land by her waiver of the statute as executrix. Petitioner’s claim is based on a promissory note, purporting to be signed by the testatrix, dated January 14th, 1891, for $450, payable one year after date, with interest at five per cent. The testatrix died December 9th, 1895, and the personal estate was insufficient to pay the debts, not including the petitioner’s claim, and on petitioner’s application an order was made in this cause, directing .pajnnent to the petitioner as executrix of the sum necessary to pay such other debts, but without prejudice to her right to apply for payment of her claim out of the proceeds of sale, as a debt charged upon the lands. This petition was thereupon filed for that purpose, and upon this application and the previous application the only proof as to the execution of the note or its cpnsideration was the evidence of the petitioner. This was
Subsequent to the decision in Colfax v. Colfax occurred two decisions of the court of errors and appeals — Hodge v. Coriell, 15 Vr. 456 (Supreme Court, 1882); affirmed, 17 Vr. 354 (1884), and Palmateer v. Tilton, 13 Stew. Eq. 555 (1885). These later decisions were considered by Vice-Chancellor Van Fleet, in Crimmins v. Crimmins, 16 Stew. Eq. 86 (1887), as overruling Colfax v. Colfax, and on a bill filed by a widow against heirs-at-law of her husband to set aside a deed made to the husband of property formerly standing in her name, because of fraud and undue influence practiced on her by the husband, the vice-chancellor held that the wife was a competent witness to prove transactions with the husband, under the statute of 1880, which provided that the party suing or being sued in a civil
Third. The debts of the testatrix, including the debt due petitioner, were charged on the lands by her will. The will first directs “that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease,” and then, after two pecuniary legacies of $300 and $200, proceeds: “I give, bequeath and devise all the residue of my estate, both real and personal, and wheresoever situated, to my three daughters [the petitioner and the two respondents],, to be equally divided between them, share and share alike,” &c.
This general direction of the testatrix that her debts be paid charges them on the real estate, under our decisions. Shreve v. Shreve, 2 C. E. Gr. 487, 494 (Errors and Appeals, 1864); Thomas v. Thomas, 2 C. E. Gr. 356 (Beasley, Master); Suydam v. Voorhees, 13 Dick. Ch. Rep. 157 (Vice-Chancellor Reed, 1899).
The personal estate is, of course, the primary fund, but in, this case the personal estate has been exhausted.
Fourth. The petitioner’s debts being charged on the land,, she has a right, as creditor, to enforce in this court the equitable lien thus created against the lands (Suydam v. Voorhees, supra; also, 3 Pom. Eq. Jur. § 1247), and the lands having-been sold free from petitioner’s debt, by the decree obtained in the partition suit (which directed a sale of all the petitioner’s rights in the land), the lien or charge may be enforced against the proceeds of sale. Gen. Stat. p. 2984 ¶ 20, tit. “Sale of Lands." Independent of this statute, the rule seems to be that where a sale in partition has been made a creditor may come in by petition to have the debts paid out of the proceeds of' sale. Latimer v. Hanson, 1 Bland Ch. 51, approved in Speer v. Speer, 1 McCart. 240, 251 (Chancellor Green, 1862), and the practice of this court in relation to the application of executors and administrators for so much of the proceeds as is necessary to pay the debts (whether they are parties to the suit or not),, is based upon this theory.
The remedy by lien may be enforced even if action at law for the debt is barred. 11 Am. & Eng. Encycl. L. (2d. ed.) 177, 152.
Sixth. The other exceptions to the master’s report have been considered and are overruled. The items excepted to are the payments made bj petitioner as one of the tenants in common for the benefit of the estate. These were properly made, as the master finds, and no sufficient reason has been urged for rejecting any of those items allowed. Tfie claim that the petitioner excluded the other tenants in common from the premises is not sustained by the evidence. Payment to- petitioner from the funds in court will be advised, in conformity with the master’s report.