| New York Court of Chancery | May 18, 1898
The ancestor died in 1880, leaving a widow and four chil■dren — two sons and two daughters — all of whom were adults. The indications are that the widow was well advanced in years. Besides the land in question, a house and lot, the ancestor appears to have left some little personal property, which was taken possession of by the widow and partially distributed among her children.
The parties were foreigners and not familiar with our laws, and seem to have supposed and acted upon the idea that the widow was the absolute owner of the land. At any rate, by the consent of all the children, she continued to occupy the homestead as her own, renting out a portion and taking the rents and profits. She also paid the taxes, water rents and insurance, and made the repairs for several years, and it may be fairly taken to have been a part of the arrangement between her and her children under which she occupied her homestead that she was to incur those expenses. So that the case is probably not within the rule established in Spinning v. Spinning, 16 Stew. Eq. 215.
About the year 1890 she became unable to pay all these ■expenses and support herself, and her son August Thiele advanced money for that purpose and also to pay taxes, water rents and insurance, amounting to about $800.
Shortly before she died, August ascertained the truth as to the situation of the title and conferred thereon with his brother and sisters, and they appear to have all agreed that he should be reimbursed for what he had advanced, and for that purpose ■a mortgage was prepared for three-fourths of the amount, to wit, $600, to be executed by the two sisters, brother and mother to him. The mortgage was executed by one of the sisters, a Mrs. Kunz, since deceased, and by the mother, but the other brother and sister refused to join in it. In that condition of affairs the bill for partition was filed by Charles Thiele against his mother, his brother August and a sister, Mrs. Shock, and the children of the deceased sister, Mrs. Kunz. The mother ■died after bill filed. August, by an answer, set up a lien upon
The only ground taken in argument against this finding was that these payments were not made, either directly or indirectly, by August Thiele, but were made by his mother out of her own funds. It was not contended that if he had actually supplied the money for that purpose he should not be reimbursed out of the property.
Admitting that it was the legal duty of the widow, under the circumstances, to pay these taxes, yet, if she failed to pay them, they and also the water rents would be a lien upon the premises, and the property would be sold to pay them.
The evidence shows that it became necessary during the latter part of the widow’s life, in order that she should be supported, to relieve her of the burden of paying these taxes, and, under the peculiar circumstances of the case, I conclude that the children, by their acquiescence in their mother’s occupation and with their knowledge of her poverty, waived their right, if they had any, to have her pay the taxes and water rents. The two assessments for benefits stand on a different basis. It was not her duty to pay those.
So that the only question is the one of fact which was litigated before the master, whether August Thiele actually furnished the money to make these payments. On this question I think the clear weight of the evidence is in favor of the master’s conclusions.
For these reasons, I will advise that the exceptions be overruled.