Smith v. Cornell
| Decision Date | 11 December 1888 |
| Citation | 111 N.Y. 554,19 N.E. 271 |
| Parties | SMITH v. CORNELL. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by Henrietta C. Smith, as sole heir at law of Gershom B. Smith, deceased, to compel John T. Cornell, as his executor, to pay out of the personal estate in his hands certain taxes assessed upon real estate of the testator during his life-time. Plaintiff appeals from an order of the general term of the superior court reversing the judgment rendered at special term, and ordering a new trial.
Benj. M. Stilwell, for appellant.
Horace Secor, Jr., for respondent.
At the time of the testator's death, in January, 1883, he was seized of certain real estate in New York city, and by his will he had devised the same to his executor, in trust for certain uses and purposes. As the result of an action brought by this plaintiff, his only child, it was, in November, 1883, adjudged and decreed that the trust attempted to be created by the will was an unlawful one, and that the lands descended to plaintiff as sole heir at law of the testator. At the time of his death there were unpaid the taxes imposed upon the lands for several years past, and in May, 1883, a sale was had for the taxes in arrears for the year 1879. Immediately upon obtaining her decree this action was commenced by the plaintiff to compel the defendant, as executor of her deceased father, to pay, from the personal property in his hands, the taxes remaining unpaid, and to redeem the lands from the tax sale thereof. The executor defended the action, and alleged that the plaintiff had purchased the lands at a sale had in October, 1883, pursuant to the terms of a decree in an action brought against him by the widow of the deceased for the recovery of her dower, and that the sale and the referee's conveyance to this plaintiff were made subject to the unpaid taxes, and sale therefor, mentioned. The personal estate was sufficient for the purpose of discharging the tax liens, and no claims had been presented to the executor, pursuant to his notice, of a character entitled to a preference, under the laws, over taxes imposed and unpaid prior to the testator's death. The contention of the appellant, on these facts, is that the general term erred in reversing the judgment of the special term, which adjudged that the defendant, as executor, should pay the taxes in question, and we think the appeal should be sustained.
The theory of the defense is to the effect that the purchase by this plaintiff at the sale under the decree in the dower action, and the acceptance of the deed of the referee conveying subject to unpaid taxes, etc., operated to release the executor from the legal obligation resting upon him to discharge those debts of the testator. The general term accepted that theory, and thereby fell into serious error. The learned judge who delivered the opinion of the general term below said that when this plaintiff bought the premises ‘subject to taxes it was the equivalent of an obligation to the defendant that the land should be the primary fund for the payment of taxes, and not the personal property of the estate,’ and that she ‘thus consented that the executor need not so apply the personal estate.’ No such consequences did or could possibly flow from the transaction of purchase by this plaintiff, either in equity or at law, and the defendant was never absolved from his duty as executor to apply the personal estate in his hands to the payment of these taxes. By the provisions of the Revised Statutes of this state the obligation is imposed upon executors and administrators, next after debts entitled to a preference under the laws of the United States, to pay ‘taxes assessed upon the estate of the deceased previous to his death.’ Part 2, c. 6, tit. 3, art. 2, § 27. This preference is commanded by the statute, and in obedience to the command the executor or administrator must apply the personal property of the estate as directed. The taxes unpaid at the testator's death were his personal debts. ( Seabury v. Bowen, 3 Bradf. Sur. 207; Griswold v. Griswold, 4 Bradf. Sur. 216,) and we are unable to find any reason for supposing that the rights of this plaintiff, as his heir at law, with respect to their payment, were affected by the decree in the widow's dower action, or by the conveyance thereunder. That...
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...or agreed in some fashion to pay the indebtedness (see Schwartz v. Cahill, 220 N.Y. 174, 178, 115 N.E. 451, 452; Smith v. Cornell, 111 N.Y. 554, 558--559, 19 N.E. 271, 272; Belmont v. Coman, 22 N.Y. 438; Levy v. Comfort, Co.Ct., 13 N.Y.S.2d 845, 847, affd. 257 App.Div. 1037, 13 N.Y.S.2d 847......
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...Mass. 254. Phillips v. Vorenberg, 259 Mass. 46 . Equitable Life Assurance Society of the United States v. Bostwick, 100 N.Y. 628. Smith v. Cornell, 111 N.Y. 554. The payment interest by the grantees may have been just as consistent with a purchase subject to the mortgage as with one by whic......
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MacGregor v. Johnson-Cowdin-Emmerich, Inc.
...and no case has held the contrary. It is in general true that the executor must pay as debts taxes on the realty (Smith v. Cornell, 111 N. Y. 554, 19 N. E. 271; In re Babcock, 115 N. Y. 450, 22 N. E. 263; In re Gill, 199 N. Y. 155, 92 N. E. 390), though only when they have been levied befor......
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...on property of the deceased prior to his death in a tax district of which he was a resident, were his personal debts. Smith v. Cornell, 111 N.Y. 554, 557, 19 N.E. 271;Matter of Gill, 199 N.Y. 155, 92 N.E. 390;Village of Lynbrook v. Otto, 266 N.Y. 308, 194 N.E. 766;Village of Massapequa Park......