
    Henrietta C. Smith, App’lt, v. John T. Cornell, Ex’r, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    Executors and administrators—Taxes assessed on real estate on
    TESTATOR PRIOR TO HIS DEATH—WHEN PERSONAL ESTATE NOT LIABLE NOR AMOUNT ON.
    The amount of the taxes assessed upon the re^l estate of the testator prior to his death, which have been paid out of the proceeds of said real estate, sold in foreclosure and dower proceedings (commenced subsequent to the death of testator) will not be ordered repaid to the trust nmu out of the personal estate, if the latter is insufficient to pay the admitted, claims, of unpreferred creditors of the estate.
    
      Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment rendered at special term dismissing the complaint upon demurrer by the plaintiff to the defendant’s answer.
    
      Benjamin M. Stilwell, for app’lt; Horace Secor, Jr., for xesp’t.
    
      
       See 20 N. Y. State Rep., 116.
    
   Andrews, J.

—There is no doubt that it is the duty of an executor in the ordinary course of administration to pay taxes assessed against the lands of his testator prior to his •death, before paying the other debts of the decedent, except debts entitled to a preference under the laws of the United States. 2 R. S., 87, § 27. The taxes in question in this case were not paid by the executor, but were paid out of the proceeds of the sale of the lands of the testator, pursuant to the judgments in the foreclosure action and in the action for dower, in suits commenced after his death. The direction in the judgments that the taxes should be paid out of the proceeds of the sales was in accordance with law. Code, § 1676.

The plaintiff and the executor were made parties defendant in both actions.

This action is, in substance, an action to compel the executor to restore to the trust fund, out of the personal property which came to him as executor, an amount equal to the taxes paid out of the proceeds of the sale of the lands under the judgments mentioned.

The personal estate of the testator amounted to more than the taxes. It has been adjudged in a prior action that the trust created by the will of the testator in his lands was valid to support the equitable life estate in the income during the lives of Thomas and Benjamin Oliphant, but that the ulterior limitation was void, and that the lands descended to the plaintiff as heir at law of the testator, on his death, subject to the estate in the trustee for the two lives mentioned.

If there was nothing else in the case, it would seem that the plaintiff would be entitled to have the sum taken from the land to pay taxes, restored to the trust fund. The proceeds from the sale of the land are to be treated as land, as between the heir at law and the next of kin or legatees of the testator. But the answer alleges and the demurrer concedes that the admitted claims of unpreferred creditors of the estate, largely exceed the personal assets of' the testator. If, therefore, the executor is required to pay over to himself, as trustee, out of the personal assets, the amount taken from the real estate to pay taxes, the replenished .fund into which the réal estate has been converted, would be liable to be reappropriated, on the application of creditors, to the payment of the general debts of the testator.

The statute prescribes special proceedings for the sale off the real estate of a decedent for the payment of debts, and an executor, as such only, and by virtue of his general power, is not vested with administrative authority to sell-lands for this purpose. Smith v. Cornell, 111 N. Y., 554; 20 N. Y. State Rep., 116.

But without any action on his part, the taxes have been paid out of land embraced in the trust. The question is, ought the amount paid to be restored for the benefit of the beneficiaries in the trust, and the remainderman.

Upon the facts admitted, we think the relief was properly-denied. This result prevents circuity of action, and subjects the trust fund to no charge, except that to which in some form it would sooner or later be liable. The possibility that by failure of creditors to pursue their legal remedies, the fund would be exonerated, is too remote to be considered, and moreover, it is a consideration which does not commend itself to a court of equity. The conclusion reached, does not conflict with Smith v. Cornell (supra), which was plainly well decided. That case involved the-simple question whether a purchase by the heir at law of lands of the testator, on a sale under a decree in an action for dower, brought by the testator’s widow, where the sale and the conveyance were made subject to unpaid taxes, assessed during the testator’s life-time, precluded the heir at law, to whom the lands descended, subject to a trust for lives, from calling upon the executor to pay the taxes out the personal estate of the testator, no special circumstances being shown to take the case out of the general rule.

We think the judgment in the present case is right, and it should, therefore, be affirmed.

All concur.  