Potter v. Watkins

• Decision Date: 19 December 1928
• Parties: POTTER v. WATKINS et al.
• Court: New Jersey Court of Chancery

144 A. 27

POTTER

v. WATKINS et al.

Court of Chancery of New Jersey.

Dec. 19, 1928.

Syllabus by the Court.

Suit by Mabel Lawrence Potter against William Bell Watkins and others. Decree in accordance with opinion.

Otto A. Stiefel, of Newark, for complainant.

Lichtenstein, Schwartz & Friedenberg, of Hoboken, Stuart A. Young, of Newark, and Dolan & Dolan, of Newton, for defendants.

BACKES, Vice Chancellor. This bill was filed by the widow of Robert H. McC. Potter. deceased, for a discovery of the assets of his estate, so that she could elect between her dower and a provision in his will in lieu of dower. The estate was given to the executors in trust and all the land has been converted into cash under a power in the will, free of the widow's dower, released by her under a reservation of her rights in the funds by a protecting order made in the cause. The essential portions of the will are set forth in the opinion advising a discovery, reported in 99 N. J. Eq. 538, 134 A. 84. The master to whom it was referred has reported that the widow is dowable of net land value of $367,900.80, and to this she files exceptions. The land sold for $490,000, and on this basis the master calculated the value of the dower, and correctly. The improved land in Hoboken, which was sold for $450,000, was Incumbered by two mortgages executed by the deceased to secure his bonds. The widow had joined in only one. The master, in a mistaken belief that she was a party to both, charged her interest accordingly. The report will be restated in this respect (Campbell v. Campbell, 30 N. J. Eq. 416), and to that there is no objection.

The widow claims that her dowable third should be relieved from the charge of the mortgage in which she joined, by the personal estate, and, if that be insufficient, by the remaining two-thirds of the proceeds of the land; and in the latter aspect she contends that, inasmuch as the will empowers the executors to sell the land, the proceeds are to be regarded as personal property, and that as the testator directed his executors to pay his debts and especially the mortgage debts out of the proceeds of the sale of unimproved property, obedience calls for exoneration.

The English doctrine is that a dowress, like an heir at law, may call upon the personal estate to exonerate the land from the mortgage debts (19 C. J. 486) and the right is extended in equity, but it is established law that as between a dowress and an heir at law the rule does not exist. Their rights as to each other are fixed at the death of the husband. Burnet v. Burnet, 46 N. J. Eq. 144, 18 A. 374. The personal estate, proper, is insufficient to pay the debts and administration expenses.

The conversion of the land into personalty was for the purposes of the will, the administration of the estate as therein directed, and the legal fiction is not available to the widow. If she renounces the testamentary provision in lieu of dower and asserts her right of dower in repudiation, she will be as a stranger to the will. It is her privilege to accept or reject the will; not to deny and reap. The directions to the executors to pay debts, and especially the mortgage debts on the improved property out of the unimproved land, are purely administrative, beneficial to takers of the decedent's estate, devisees and heirs at law; but a dowress is not in that category, for her dower has its inception in the coincidence of coverture and seizin in the husband, and its consummation, in her survivorship; not in the devolution or disposition of title at his death, but in spite of them. That the provisions for the payment of debts generally and of the mortgage debts out of certain land were not for the benefit of the widow is emphasized by the will in which the testator directed that if the widow refused the gift "she shall take nothing hereunder." In Leavenworth v. Cooney, 48 Barb. (N. Y.) 570, the testator gave his estate to his executors in trust to sell the real estate and pay his debts and mortgage incumbrances on his land, and a legacy to his wife in lieu of dower which she refused to take. It was held that the directions to pay debts and mortgage incumbrances were not intended for the widow's benefit and that her estate in dower was not thereby enlarged. The doctrine was adopted and applied in the Burnet Case, and Vice Chancellor Pitney's discussion of the principles and authorities is compelling and his judgment is accepted as ruling the point Where an heir at law (or devisee) redeems a mortgage in which the wife joined the husband the rule in equity is contribution, not exoneration. 19 C. J. 488; 9 R. C. L. 597; 1 Scrivener on Dower (2d Ed.) 519; Hartshorne v. Hartshorne, 2 N. J. Eq. 349, Hinchman v. Stiles, 9 N. J. Eq. 454; Chiswell v. Morris, 14 N. J. Eq. 101; Everson v. McMullen, 113 N. Y. 293, 21 N. E. 52, 4 L. R. A. 118, 10 Am. St. Rep. 445. See note to Commercial Bank & T. Co. v. Dudley, 12 A. L. R. page 1347. The case of Higbie v. Morris, 53 N. J. Eq. 176, 32 A. 372, cited by the widow's counsel, simply holds, in effect, that as the testator had not directed the payment of his debts, a specific devise could not be relieved from the lien of a mortgage out of lands passing under the residuary clause, and, as there was no rule of law in respect to it, there could be no exoneration. He also argues that the act of 1924 (1 Comp. St. Supp. 1924, p. 1971) which abolishes exoneration of mortgage debts "out of the personal estate or any other real estate of the ancestor or testator," presupposes that the remaining real estate had been callable. So much as is underscored was intended to reach a situation, as indicated in the Higbie Case, where a testator directs the payment of debts.

Taxes on land, delinquent at the testator's death, are not proper charges against...