77 N.J. Eq. 455 | New York Court of Chancery | 1910
The will of Henry Brown, who died in March, 1889, directed that his debts be paid out of the rents, issues, profits and income of his estate as soon as could reasonably and practically be done; and that after the debts should he so paid, Mrs. Brown, Lostator’s wife, should become entitled to the income, after the payment of taxes and necessary expenses, during her life; this bequest to her was in lieu of her dower. The will further provided that at the decease of the widow the real estate should be sold by a surviving executor and the proceeds divided among certain persons therein named.- The will makes no disposition of personal property other than the direction for the payment of debts and the provision for the widow to receive the net income of both real and personal property during her life. Mrs. Brown, at the decease of testator, became sole executrix under the will and took possession of the real estate and collected the revenues therefrom until her death on December 29th, 1907.
Among the debts of testator was a mortgage of $3,500, and another mortgage of $1,000.
In December, 1900, a bill was filed by complainant and others (who under the will became entitled to one-half of the real estate at the decease of Mrs. Brown) against Mrs. Brown and the persons who were entitled to the other half of the real estate at the decease of Mrs. Brown, in which bill it was alleged that Mrs. Brown had neglected to apply the income of the estate to the payment of the mortgage debts and had caused the mortgage for $3,500 to be foreclosed in her own interest, and had purchased the property at -the foreclosure sale, and prayed for a decree to the effect that the property so purchased by Mrs. Brown should be decreed to be a part of testator’s estate, free from encumbrances, and that Mrs. Brown account for the income received by her and be required to pay the mortgage of $1,000. Mrs. Brown and other defendants answered; and in November, 1901, pursuant to a stipulation., a reference was made to James R. Hoagland, as special master, for an accounting by Mrs. Brown before him. In October, 1907, an order was made directing that Mrs. Brown proceed before said special master with said accounting and complete the same on or before the
Under these circumstances, I think it impossible to deny relief to complainant on the ground of laches. The original suit was brought at a time when Mrs. Brown and all other persons acquainted with material facts of the case were alive, and no loss or inconvenience is suggested as having arisen by reason of any delay in bringing the suit. It is manifest that great delay has occurred in the progress of the suit; but whether that delay is to be attributed to one side more than the other, is far from certain. It is therefore necessary to examine the merits of complainant’s claim.
The primary charge is that Mrs. Brown wrongfully permitted the mortgage for $3,500 to be foreclosed, and acquired title for her own use through that foreclosure. The evidence is entirely convincing to the effect that the purchase of the real estate at the foreclosure sale by Newcomb was in behalf of Mrs. Brown, and that the deed from Newcomb to Tuller was also in behalf of Mrs. Brown., and was paid for with her money, and that Tuller merely held the title for her, and that the deed from Tuller to Mrs. Brown was merely the restoration to her of the legal title. These several conveyances must therefore be treated the same as though the sheriff’s deed had been made to Mrs. Brown, as a purchaser at that sale, for the amount due on the mortgage wdth the costs of foreclosure added.
Independently of the question of the extent to which Mrs.
Under these circumstances, I think it clear that in equity Mrs. Brown must be regarded as occupying the same position as though she had merely purchased the mortgage. The devisees of the real estate thus became entitled to have the income of the estate applied in reduction of the mortgage debts. The net income of the estate which has been received by Mrs. Brown appears to have been far more than sufficient to have discharged both mortgages and all other debts of the estate. In such case the property which was sold at foreclosure sale and which now stands in the name of Mrs. Brown must be decreed to belong to the estate of Mr. Brown and to be freed from encumbrance and subject to be disposed of pursuant to the terms of his will; and
In stating that the net income received by.Mrs. Brown far exceeded the amount of the two mortgages, I assume that the net income received by her was at least $1,000 per year. She will, of course, be credited with the money expended by her in acquiring the legal title to the property at foreclosure, and interest on that amount. In other words, any accounting would proceed upon the theory that her purchase at the sale was a mere purchase of the mortgage. But with these credits allowed to her, it appears that •both mortgages would have been fully discharged had she applied the income as directed by the will. In accepting the bequest under the will and assuming to discharge the duties imposed by the will, she took burdens with benefits and renounced all inconsistent rights.
Should defendants desire a reference to a master to have it more definitely ascertained whether the revenues received by Mrs. Brown have been sufficient to discharge the two mortgages and such other debts as may have existed, I will make such a reference; otherwise, I will advise a decree in conformity to the views herein expressed.