In re the Estate of Kene — 60 N.Y. St. Rep. 163

Majority

p. 163

In the Matter of the Estate of John F. Kene, Deceased.

(Surrogate’s Court, Westchester County,

Filed April, 1894.)

Headnote

1. Tax—Collateral inheritance.

A devisee of land, which is subject to a mortgage, takes it cum, oncres unless the will contains an express direction to the contrary.

p. 164

3. Same.

An equity in premises less in value than $500 is exempt from the collateral inheritance tax. '

The deceased died on the 11th day of May, 1891, leaving a last will and testament. His estate consisted of real and personal property, all of which, with the exceptions of one house and lot, he bequeathed and devised to his two brothers, and was not of sufficient value to cause1 it to be subjected to taxation tinder the Collateral Inheritance Law then in force." The house and lot mentioned was devised to one Louisa F. Hoffkens, who was not related to the testator. An, appraiser was appointed to ascertain and fix the value thereof, who duly' reported such value at $1,509.48. A tax amounting to seventy-five dollars and forty-seven cents 'was assessed and fixed thereon accordingly. An appeal was taken therefrom to the surrogate, the ground thereof being that there was(a mortgage on said property of the amount of $1,100 at the time of the death of the decedent. The personal estate Bequeathed to the brothers was of the valqe of $4,000.

C. E. Kene, for app’lt; Edward Ilasselt, for resp’t, the county treasurer.

It is claimed by the counsel for the respondent that the bond accompanying the mortgage was an obligation of the deceased which his executors should pay, they having sufficient funds of the estate for that purpose. . If this view were correct the mortgage would be satisfied out of the personal estate, and the devisee of the house and lot would take it free therefrom, and so be liable to the payment of the tax'. In this he seems to be in error. Such was the rule in England, but it was changed in this state as early as 1786, and is continued to the present day. By section 4, page 749, of the 1st Revised Statutes now in force, it is provided that “ whenever any real estate, subject to a mortgage executed by an ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of1 his own property, without resorting to the executor or administrator of his ancestor, unless there be express direction in the will of such testator that such mortgage be otherwise paid.” See reviser’s note to the section. The will gave no direction for the payment of the mortgage.

The‘word “ ancester,” in Termes De La Ley, is said, in a forensic sense, to be more properly applied to the possessor of an estate than to an ancestor of a family, and in this sense it is frequently, and, indeed, most generally employed in books which treat of descents of real estate and in statutes relating to that subject. Bur-rill, in his Law Dictionary, defined it ,to be “one who has gone before or preceded in the seizin or possession of real estate,” Here the devisee takes it cum onere. Taylor v. Wendel. 4 Barb. 324 ; 4 Kent’s Comm. 420. In a proceeding in surrogates’ courts to sell real estate for the payment of the debts of a decedent, on which there is a mortgage, the bond which usually accompanies it is never treated as a debt to be proven. ,

As the value of the equity in the premises is found to be less

p. 165

than $500, it is exempt from taxation, and the decree fixing the tax is, therefore, reversed, with costs.

Decree reversed, with costs.

Cases cited

Hunt v. Fish 4 Barb. 324 N.Y. Sup. Ct. p. 164