Rossiter v. Cossit, 15 N.H. 38

Rossiter v. Cossit

15 N.H. 38 | Superior Court of New Hampshire | 1844

Parker, C. J.

We cannot adopt the principle suggested in the argument for the appellee, that the administrator is to be allowed the amount he has paid in the redemption of the mortgage to the wardens of Union Church, if he acted in good faith merely. The case of Vez vs. Emery, 5 Ves. 144, cited by the counsel for the appellee, is very express upon this point. The master of the rolls there says, “ this defendant, the executor, finding this counter-note among the testator’s effects, and being called upon by the testator’s brother for the ¿£600, under the first note, very *42incautiously, but I believe very innocently, paid the whole £600.” * * * “It is now said that he was under no obligation to pay more than £400 ; and being a trustee for infants, he was in so doing guilty of a breach of trust. I very much wish that, consistently with the rules of the court, I could hold him fully justified; but, when I consider his neglect in malting this payment of his own conjecture, and to the wi’ong of his cestuys que trust, I must hold that the master was right in charging him. He certainly acted with a good intention, and imagined himself justified; but he thought fit to depend upon that which a prudent executor would not have relied on, this strange transaction in Switzerland. If he had taken advice, and been advised by any gentleman of the law in this country that he was bound to make this payment, I would not have held him hable.” See, also, Hill on Trustees 572; Lewin on Trusts 318, and cases cited.

> It does not appear that the appellee took any legal advice respecting the legal rights of the parties, or the effect of his proceedings in reducing the mortgage. At the time of the sale, he advised with the creditors whether it was best to sell the farm in parcels or entire, but that does not appear to have had any particular reference to a separate sale of the eighteen acres which were embraced in the mortgage to the wardens of Union Church, nor does it appear that a separate sale of that tract at that time could have affected the case. The rights of the parties had been fixed by the redemption before that time, so that a sale in one way or another would not then affect the widow’s title to dower. And in malting the redemption previously, the adminisistrator, so far as appears, acted on his own responsibility, without advice from any one. It is our duty, and it is our pleasure, to give to his acts as favorable an interpretation and construction as we may. 5 Vesey 144, Vez vs. Emery; 4 Johns. Ch. Rep). 629, Thompson vs. Brown. But, notwithstanding that he acted in good faith, if what he did would probably operate to the prejudice of the creditors, and will in fact so operate if he is allowed the amount paid, we must not disregard their intei’ests because of his good intentions.

The administrator had a discretion in this case in relation to *43the redemption, but it was not an unlimited discretion. It was Ms duty to redeem lands mortgaged for less than their value, or to sell the equity; and, the estate being insolvent, it was his duty in this case to take that course which would be most beneficial to those interested in the distribution. The estate being insolvent, he had not a discretion to expend the funds which belonged to the creditors, in a redemption for the benefit of the widow. 5 Pick. 146, Gilson vs. Crehore; 1 Atk. 487, Bennett vs. Lee; 2 Madd. Ch. 592; 7 N.H. Rep. 106, Robinson vs. Leavitt.

Stevens, the testator, was at Ms death seized of an equity of redemption in these eighteen acres. It is, and it has been for years, well settled that this is an estate of which the widow is dowable against all persons except the mortgagee and those claiming under him. 6 N. H. Rep. 25, Cass vs. Martin; 15 Mass. 278, Snow vs. Stevens; 17 Mass. 564, Parker vs. Parker; 3 Met. 40, Robinson vs. Bates. But she cannot be endowed as against them, except by payment of the mortgage. 7 N. H. Rep. 102, Robinson vs. Leavitt, and cases there cited ; 11 Vesey 59, Palk vs. Clinton; 6 N. H. Rep. 25, Cass vs. Martin; 2 Powell on Mortgages 689, Coventry’s Ed. (note ;) Prec. in Ch. 137, Palmer vs. Danby ; 2 P. Wms. 700, Banks vs. Sutton; 1 Paige 192, Russell vs. Austin; [7 Metcalf 157, Van Vronker vs. Eastman; 11 Shepley 332, 334, Campbell vs. Knights.] Nor against any one who, having an interest in the redemption, has in fact redeemed, except by payment of a contribution. 7 N. H. Rep. 104, Robinson vs. Leavitt, and authorities there cited; 6 N. H. Rep. 25, Cass vs. Martin; 5 Johns. Ch. 482, Swaine vs. Perine; 7 Greenl. 102, Carll vs. Butman. But if the administrator redeems by a payment of the mortgage from assets of the estate, that lets the widow into dower without contribution. 13 Mass. 525, Hildreth vs. Jones; Ditto 327, Bolton vs. Ballard; 17 Mass. 564, Barker vs. Parker; 14 Pick. 345, 350, Jennison vs. Hapgood. See in this connection also, 6 Johns. 290, 295, Hitchcock vs. Harrington; 7 Johns. 278, 282, Collins vs. Torry.

The administrator represents the deceased, who owned the equity, and when ho redeemed in this case with the money of the *44testator, it is as if the testator himself had redeemed. The mortgage is discharged. As to the dower, it is as if the mortgage had never existed ; for the widow being dowable as against every one but the mortgagee and those claiming under him, and the mortgage being paid by one who had the right to pay and redeem, is discharged, unless the party paying has the right to have it subsist for the purpose of enforcing contribution. The mortgagee cannot set it up, nor is there any one to claim under him who can set it up against the widow. The administrator who has redeemed with the assets of the deceased husband, cannot set up the mortgage in bar of her dower, or claim a contribution of her, for he represents the husband, and pays with what was his property. Had he redeemed with his own money it would have presented a very different case.

There seems not to have been any misapprehension upon this subject. While it is too well settled to admit of doubt by any one conversant with legal proceedings, that a mortgage subsisting at the time of the husband’s purchase is a bar of the dower of the wife, except she redeem or contribute to the redemption, it seems clear in this case that it was understood that the redemption by the administrator probably changed her rights, and let her in to claim dower without contribution. The sale was made shortly after the redemption, subject to her dower, if she had any ; and she at the same time claimed dower, and refused to contribute towards the redemption which had already been made. She understood her rights, and there is nothing to show that the administratin' misapprehended them.

The apparent effect of such a redemption by the administrator of an insolvent estate, under ordinary circumstances, thus admitting the widow to dower without contribution, must be to the prejudice of creditors. A case can hardly be imagined in which it could operate for the benefit of the estate; because the administrator has power to sell, subject to the mortgage, and the purchaser, if he redeemed, would then have the right to hold against the widow until she contributed. But, as she may now have her dower without contribution, the estate, unless by reason of some special circumstances, is probably prejudiced to the value of what *45would have been required as her contribution, or nearly so. If we could now hold that she must contribute before she could have dower, the effect would be to give the purchaser the benefit at the expense of the creditors, as he purchased subject to her right.

All this is so palpable an effect in ordinary cases, that the burden must be thrown on the administrator to show that special circumstances existed which made a redemption apparently a prudent exercise of the discretion which the statute vested in him. He has had the opportunity to do this in the present case, but has failed to show any such state of facts. We cannot allow him, therefore, the full amount of the payment which he has thus made to the prejudice of the estate.

Decree reversed to the extent of the sum reported by the auditor, and affirmed as to the residue.