Clift v. Moses

• Citation: 22 N.E. 393,116 N.Y. 144
• Parties: CLIFT v. MOSES et al.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

116 N.Y. 144

22 N.E. 393

CLIFT

v.MOSES et al.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from supreme court, general term, fourth department.

William G. Tracy, for appellant.

Louis Marshall, for respondents.

HAIGHT, J.

This action was brought by the plaintiff, as a creditor of the estate of Charles Pardee, deceased, to compel the defendant Mary E. Moses, as residuary devisee under the will of deceased, to account for the rents and profits received by her from the real estate devised to her. Charles Pardee died on the 9th day of April, 1878, leaving a last will and testament, which was duly proved and admitted to probate on the 17th day of July, 1878. The provisions of the will, aside from the formal parts, are as follows: ‘I do order and direct my executor hereinafter named to pay all my just debts and funeral expenses as soon after my decease as can conveniently be done. I give and bequeatlf unto my adopted daughter, Mary E. Moses, wife of Lucien Moses, the household furniture, and whatever may be in the house and used as housekeeping articles. I give and bequeath unto Amos R. Pardee my gold watch. I give and bequeath to Eliza Bronson, widow of Henry R. Bronson, deceased, one hundred dollars; to Mrs. Sarah Greenman, one hundred dollars; to Mrs. Triphina Austin, if living at my decease, one hundred dollars. I do give unto my daughter, Mary E. Moses, the rest and residue of my estate, real and personal, making her residuary legatee of this my last will and testament. I do hereby nominate and appoint Benoni Lee and Mary E. Moses my executor and executrix of this my last will and testament, revoking all former wills by me made. I give and devise to my executor and executrix all my real and personal property, of every kind, in trust for the purpose of paying my debts and legacies named in this my last will, giving them power to sell, mortgager, or convey any and all real estate for the purposes above named.’ Benoni Lee and Mary E. Moses having renounced as executor and executrix and trustee under the will, Jacob C. De Witt was appointed administrator with the will annexed and trustee to execute the trust and power in trust therein contained. He having died, the defendant Sidney Smith was duly appointed such administrator and trustee. The value of the personal property left by the deceased, over and above the expenses of administration, amounted to the sum of $3,893.60, and the value of his real estate, over and above the necessary expenses of selling the same, amounted to the sum of $26,077.91. The debts owing by Pardee at the time of his decease amounted to the sum of $171,751.15. The amount of the plaintiff's claim, as settled by the judgment recovered against the estate, is the sum of $62,070.89. One Daniel Wallace was also a creditor to the amount of $3,742.35, which has been assigned and transferred to the plaintiff. The greater part of the estate of the deceased consisted of an undivided third part of certain real estate in Buffalo, N. Y., known as the ‘Mansion House Property,’ from which the defendant Mary E. Moses collected one-third of the rents and profits after the decease until the same was sold by the trustee for the purpose of paying the debts, and the amount so collected by her amounted to the sum of $7,221.92. On or about July 1, 1881, the property was sold by Smith, as trustee, by virtue of the power in trust contained in the will for the purpose of paying the debts of the deceased. Previous to the commencement of this action the plaintiff requested Smith, as administrator and trustee, to commence an action against Mrs. Moses to compel her to pay over the rents and profits collected by her, and Smith neglected or refused to commence the same.

The statute provides that ‘a devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.’ 1 Rev. St. p. 729, § 56. Under this statute it was found by the trial court, as a conclusion of law, and appears to be conceded, that no trust was created by the will of Pardee with respect to his real estate, and therefore no such title thereto was vested in his executors or trustees as would entitle them to receive the rents and profits of the real estate; that the will created a valid power in trust in the executors and trustee to sell the real estate for the purposes of paying the debts; that the real estate passed to Mrs. Moses, the devisee, at the death of Pardee, subject to the execution of the power in trust, and the title immediately became vested and remained in her until divested by the execution of the power of sale; that from the time she accepted the devise until the execution of the power in trust no one but her was entitled to the possession of the premises, or could lawfully receive the rents and profits therefrom.

There does not appear to be any question but that an heir at law or a devisee under a will, where there is no charge upon the real estate, or where the real estate is not converted into personalty, is entitled, as against the personal representatives or creditors of the deceased, to receive and retain as his own the rents and profits arising from the realty, until the same is sold for the purpose of paying the debts. Wilson v. Wilson, 13 Barb. 252; Schouler, Ex'rs, § 216; 2 Williams, Ex'rs, 893, (see note, and authorities there cited.) It is contended, however, that the testator, by his will, charged his real estate, together with the personal, with the payment of his debts and legacies, and that he devised them to Mrs. Moses subject to such charge; and that, where lands are so devised, the creditors have a lien upon the rents and profits of the land, as well as upon the land itself, and may require the devisee to account therefor.

In considering this question, for the purpose of the argument we will first assume that there is a charge of the debts upon the real estate. It then becomes important to determine the nature of the charge. The trial court has found ‘that, by the acceptance of said devise, and the collection of the rents of the devised property, the defendant Mary E. Moses became liable to pay the creditors of said Pardee, severally and respectively, all the debts of said Pardee that the personal property of said Pardee should prove insufficient to pay.’ As we have seen, the debts of Pardee amounted to the sum of $171,715.15; that the personal property amounted to the sum of $3,893.60, and the real estate to $26,077.91, leaving a deficiency of upwards of $141,000, for which sum she would be liable under this finding. If this conclusion is to be sustained, it will become necessary for devisees in the future to act with great caution in reference to the accepting of devises of real estate. They will not only require the advice of a skilled lawyer upon the subject, but will have the wait until the time is up within which creditors can prove their claims before they can know the amount of their liability, or safely accept or enter into the possession of devised property. The authority upon which this conclusion was reached is doubtless that of Brown v. Knapp, 79 N. Y. 136-143. That case, however, had reference to a legacy which was directed to be paid by the person to whom the real estate was devised, and it was there held that by the acceptance of the devise the devisee became personally bound to pay the legacy. In that case the amount of the legacy was specified in the will, and the devisee, in accepting, knew the precise sum that he became liable to pay. The same rule may prevail in reference to some particular debt in which the amount is known and specified; but no such rule can prevail in reference to the general debts of the testator, where their amount is unknown. The trial court evidently did not adhere to this conclusion, for in awarding judgment it allowed only for the rents received by Mrs. Moses, and the interest accrued thereon. There are cases in which a charge is made upon the real estate devised in such form as to make a devisee personally responsible for the payment of the charge in case he accepts the devise; as, for instance, where the devise is upon condition that the devisee pay the legacy or some specified sum, (Glen v. Fisher, 6 Johns. Ch. 33;Gridley v. Gridley, 24 N. Y. 130;) but, where land is devised charged with the payment of debts generally, an acceptance of the devise does not create a personal liability to pay, but instead thereof a lien is created in favor of the creditors, who can enforce it as against the land devised, (3 Pom. Eq. Jur. § 1244.)

In the will under consideration there is no...