Smith v. Kibbe

• Decision Date: 08 February 1919
• Docket Number: 21,388
• Citation: 104 Kan. 159,178 P. 427
• Parties: IRWIN G. SMITH, Appellant, v. HENRY E. KIBBE, as Executor, etc., et al., Appellees
• Court: Kansas Supreme Court

178 P. 427

104 Kan. 159

IRWIN G. SMITH, Appellant, v. HENRY E. KIBBE, as Executor, etc., et al., Appellees

No. 21,388

Supreme Court of Kansas

February 8, 1919

Decided January, 1919.

Appeal from Cowley district court; OLIVER P. FULLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Debts of Testator--How Paid. In the absence of a provision to the contrary in a will, the debts of the testator are payable primarily out of the personal estate as the statute prescribes, and if it is insufficient, resort may be had to the realty.

2. SAME--Debts Secured by Mortgage--How Paid. Where no other purpose is expressed in the will, it is the duty of the executor to pay a debt secured by a mortgage on real estate the same as unsecured debts are payable, if there are sufficient funds for that purpose in his hands.

3. SAME--Mortgage Debts--Duty of Executor. If the executor fails to follow the statutory rule requiring him to pay such debt out of the personalty, the devisee of the real estate may maintain an action to require him to exonerate the real estate devised, by discharging the mortgage debt out of the personal estate.

4. CONVEYANCE--Assumption of Mortgage by Grantee--Option of Mortgagor. Where a grantee in a conveyance of land assumes and agrees to pay a debt secured by a mortgage upon land, and it forms a part of the purchase price of the land, the mortgagee may accept him as a debtor or he may rely alone upon the mortgage to meet the obligation.

5. SAME--Assumption of Mortgage--Liability of Grantee. A sale of the land so incumbered, by the grantee to another, in which the other agrees to assume and pay the mortgage debt, makes the latter personally liable for such debt, if his grantor was himself liable for it.

6. SAME. Under the facts stated in the findings herein, it is held that the first grantee was personally liable for the mortgage debt, and the second grantee, who assumed its payment, was likewise liable.

7. SAME--Effect of Acceptance of Payments from Grantee. The acceptance of payments of interest and of principal upon the mortgage debt by the owner of the debt is sufficient to constitute an acceptance of the payor as his debtor.

8. SAME--Assumption of Mortgage--Personal Liability of Grantee. The fact that the owner did not begin a foreclosure proceeding on the mortgage, nor take other steps to enforce the payment of the mortgage debt by the one who assumed to pay it, does not make the obligation any the less personal.

9. SAME--Sale of Homestead--Consent of Wife of Grantor. Under the facts of the case, it is held that the contract for the sale of the land, which was a homestead, is not invalid because of the lack of consent of the wife of the grantor, she having signed a deed in consummation of the contract and both being parts of a single transaction.

10. MORTGAGE--Securing Testator's Debt--Claim Not Presented to Probate Court--Rights of Mortgagee. The plaintiff was not barred of his relief for exoneration of the land because of a failure of the holder of a mortgage debt to present it to the probate court as a demand against the estate of the testator within the period of two years, the debt not being barred by any of the limitations prescribed by the code.

S. C. Bloss, A. M. Jackson, and A. L. Noble, all of Winfield, for the appellant.

Charles W. Roberts, of Winfield, for the appellees.

OPINION

JOHNSTON, C. J.:

This action was brought to compel the executor of an estate to pay an indebtedness secured by a mortgage upon land of the estate of a deceased person out of the proceeds of the personal estate, and in that way exonerate the land from the lien of the mortgage.

In 1909, Thomas Haney owned a farm on which there was a mortgage of $ 3,000. He sold it to Bussart and Collier, and in the contract of purchase it was stipulated that they assumed and would pay the mortgage debt. In the deed, however, there was no mention made of the assumption, but there was a clause excepting the mortgage from the covenants of warranty. Prior to the sale, the land had been occupied by Haney and wife as their homestead, and it appears that she did not sign the contract, but she did sign the deed which was executed on the same day as the contract and deposited with it in a bank to await compliance with the conditions of the transfer. Bussart and Collier conveyed the land to Edwin M. Smith, and in the conveyance there was an express stipulation that Smith assumed and agreed to pay the mortgage debt, which was part of the purchase price of the land. Shortly after the latter conveyance Smith died testate, and in his will was a general direction for the payment of his debts out of his estate. Aside from a bequest of $ 100, he gave his wife all of his personal property and a life estate in all of his realty, to his son Irwin G. Smith, the plaintiff, the fee-simple title to his real estate was given, subject to the life estate. No specific reference to the mortgage on the land or the debt which it secured was made in the will.

The principal question presented here is, from what source should the mortgage debt be paid? The statute and the will must determine the question. Considerable is said in the briefs as to the common-law rules relating to the exoneration of the realty of an estate of a deceased person, but as our statute provides for the settlement of estates and the descent and devolution of property, we must look to it and to the will made in pursuance of the statute to determine from what fund the indebtedness should be paid. It was competent for the testator to require the payment of the mortgage debt out of a particular fund, or to devise the land subject to the mortgage debt. In this instance the testator did neither. In general terms he directed that his debts should be paid out of his estate, without indicating that any particular fund or property should be used for that purpose. The personal property, which amounted to $ 4,016, and also the life estate in his land, were given to his wife, without indicating the part which should be devoted to the payment of debts. The fee title as we have seen was given absolutely to his son, without mention of the mortgage debt or of anything indicating an obligation of the devisee to pay the mortgage debt. There being nothing in the will indicating the purpose of the testator that the debts should be paid out of any particular fund, and there being no provision that any class of his property, real or personal, should be exempted from the payment of his debts, the rule of payment prescribed by the statute must be followed. The debts of a testator are primarily payable out of the personal property. (Gen. Stat 1915, §§ 3853, 4553, 11812.) If the...