
    Matter of the Estate of John Plopper, Deceased.
    (Surrogate’s Court — Cattaraugus County,
    December, 1895.)
    1. Executors and administrators—Sale of realty to pay'debts. .
    Where the widow,' prior to her. appointment as administratrix, pays a debt of the intestate out of her own property, she cannot be considered a volunteer, but is entitled to be reimbursed from the estate,, or from, the proceeds of a sale, of the realty if the'personal property is insufficient. . •
    
      2. Same.
    ' The j udicial settlement of the accounts of the administrator is not. a" jurisdictional requirement before instituting a proceeding for the sale of real estate for the payment of debts, but where no such settlement. ’ has been had the administrator assumes the burden of showing, the jurisdictional facts.
    3. Same.
    > Proof that the intéstate had no personal property at the time of his death is sufficient to make a case for such a sale.
    Proceedings for the disposition of real estate for payment of debts.' ; . ■
    
      E. A. Nash, for petitioner.
    
      John Mosher, for contestants.
   Davie, S.

John Plopper died intestate, at - the town of Leon, July 24,1891, leaving him surviving his widow, but-no descendants. He was the owner of the real estate described in, the petition, consisting of a dwelling and small tract of land of the value of $600. The widow was appointed administratrix on the 4th day of February, 1895, and thereafter -filed her petition for a disposition of such real estate for the payment of the debts of the intestate. The funeral expenses, including the amount expended for a tombstone, was the sum of $140. He was indebted at the time of his decease for medical attendance to the amount of forty dollars, also upon a. promissory note given by him to one Snyder to secure a portion of the purchase price of the premises described in the petition. The widow made a small payment upon such note shortly prior to the death of the intestate, and after his death and before her appointment as administratrix paid the balance to Snyder and the note was thereupon transferred to and is now held by her, and she seeks to have- the amount thereof established as an indebtedness of the intestate in her favor.

The contestants object to the making of a decree for the disposition, of such real estate, asserting that the proof fails to show insufficiency of personal estate- 'to . satisfy such indebtedness", and that the widow having voluntarily intervened and paid the-indebtedness- to Snyder, she is not a creditor of the estate within the'meaning and purview of the'statute.

.’The evidence’’fails .to show the particular circumstances ; under, which the various payments were made by .the widow ■ to Snyder upon this note, nor is there, any direct proof that such- payment made prior to the death of -the intestate was, at his request, but it-does satisfactorily appear that she 'paid the entire amount of such note from her. individual property, and that- upom-hueh,.payments- -being completed-. Snyder.;.delivered the note to-her, and she presents the same with proper, proof of its execution by the intestate, as evidence of her demand against the estate.

Had Snyder continued to hold' such note there' could, of course, have béen no question of his right to have maintained this proceeding to enforce its collection from the real. estate in casé of insufficiency of personal assets, nor could the right of the widow .to resort to the same remedy have been questioned had the proof distinctly showed that she had purchased the note. of Snyder; but having paid'the note prior to her appointment as administratrix, it is claimed that such payment was éntirely voluntary, and that she is not subrogated to the rights and remedies of the original creditor. -.

It is undoubtedly'true that the- doctrine of subrogation should-onlybe applied when justice will- be. promoted thereby, and that' one who is a mere volunteer may not invoke its aid.. Acer et al. v. Hotchkiss, 97 N. Y. 395.

' One who pays-a debt for which he is not personally bound, and- which is not' a, charge upon- his 'property, is not entitled, to' be subrogated to a lien which the creditor had upon the estate of the debtor. Wilkes et al. v. Hamper et al., 1 N. Y. 586,

' But the. case at bar hardly -calls for ah application of the principle enunciated in the authorities cited. It is of but little consequence that- the widow paid this indebtedness to Snyder before her. appointment as administratrix, inasmuch as she was subsequently appointed and .seeks .to maintain-this proceeding in that capacity. . The situation is simply this, the husband, iii his -lifetime, purchased the real estate in question, and gave :a note to Snyder- as .-part payment óf -the purchase price; the widow paid this noté tn Snyder ; the contestants, who are distant and collateral relatives- of the intestate, insist that she is not entitled to reimbursement but of the land, but that they, as the heirs at law of the intestate, are entitled to hold, this real estate discharged from all obligation to make such reimbursement. The equitable features'of such claim are not very apparent. It would result in great.injustice to the widow to hold that she was to lose and the contestants'to gain the benefit of this payment made by her. . .

In the case of Ball v. Miller, 17 How. Pr. 300, it was held that where, upon the judicial settlement of the accounts of an administrator, a balance was found due to the representative from the estate,, such balance, so far as it consisted of or was caused by. the application of the moneys of the estate to the payment of debts existing against the intestate in. his lifetime, should be satisfied out of the. proceeds of the sale of the real .estate. Justice Hogebqom, in the opinion in.this case, says: “ So far as the expenditures in the administrator’s account over the receipts is caused, by the application of the moneys of the estate to the payment of debts existing against the intestate in his lifetime, I think the administrator-ought to be regarded as the equitable assignee of those claims, and to be subrogated to the rights of those creditors. This is a familiar principle in equity jurisprudence, and the Surrogate’s Court partakes strongly of the characteristics of an .equity tribunal. In equity the payment of a claim does not always and necessarily extinguish it," but it is deemed merged, extinguished and satisfied, or Icegot alive, according as equity and justice require. In this case there was no obligation on the part' of the administrator to make payments beyond the personal assets in his hands, and if. she made them, it must be deemed .to have been done for the convenience of the creditor or for the benefit of the estate, and not to" her own prejudice; to the extent that she. has applied her own moneys or those of the estate .upon the claims of creditors of .'the deceased I think she must be regarded as the equitable assignee of those demands and entitled to. satisfy them out of the jn-oceeds of the real estate in the same manner as. the original creditors, and such, I think, is- the fair effect of the authorities.” See opinion, p. 305, and in this connection the court cites Livingston v. Newkirk, 3 Johns. Ch. 312, 318; Evertson v. Tappen, 5 id. 497, 514; Gilchrist v. Rea, 9 Paige, 66 ; Collinson v. Owens, 6 Gill & J. 4.

The case of Ball v. Miller is cited and recognized as authority in Duntz v. Duntz, 44 Barb. 461.

The only satisfactory conclusion which can be arrived at from a careful review of all the 'authorities, taking into consideration the -obvious equities of the widow’s claim, is' that she should he permitted to recover from the proceeds of the sale of the real estate not only-the funeral expenses paid by her, hut also the'ampunt advanced by her to. .Snyder.upon the note of -the intestate.

In regard to the remaining proposition, that theevidence fails to show insufficient personal estate for payment of .these debts.

.The title to- real estate,, upon the death-of the- owner intes- ' tate, vests, immediately in his heirs, and it can he taken for the payment of debts only by virtue of the statute, and the, statutory -provision must be strictly followed. Tó justify a surrogate’s decree directing- the sale of- real .estate of .'which the intestate died seized,'.for the payment of his debts, it,must be. made to appear-that all the personal property of the decedent which could have -been applied to the payment -of the • decedent’s, debts and funeral expenses has been so applied, or that the.administrator has proceeded.with reasonable.diligence' in -converting the same, into money-and applying - it in such payments, .and that it is-insufficient for the payment, of the samé. Kingsland v. Murray, 133 N. Y. 170.

The judicial settlement of the accounts.of the, administrator was not a jurisdictional requirement before instituting, this . proceeding, hut where no .such settlement has been had the administrator assumes the burden of showing affirmatively, as ■ a-part-of her -case, the facts required by section 27'59 of the Code. Matter of Howard, 11 Misc. Rep. 230.

Thén. the question arises, does the evidence in this cáse satisfactorily show such insufficiency of -personal', assets ?

The petition alleges that the intestate owned no_ personal property at the time of his death. ' It appears from the evidence that for many years prior to his death the intestate and •the petitioner had resided upon a farm in the town of ¡New Albion, and that such personal property as was upon the farm had been produced and raised upon or paid for out of the avails of the farm; that intestate originally contracted in his own name for the purchase of the farm, but, being unable to meet the payments, the-contract was foreclosed, and upon the .sale under such foreclosure the petitioner became the purchaser, and that for many years the title to such land was in the name of the petitioner. On the examination of the petitioner as a witness on her own behalf, she was asked the following question: Did he (the intestate) own any personal property ? ” to which she replied, “ I calculated we owned it together; he bought the mowing machine, rake and tools and ■such things as were there,”, but upon her further being inter-" rogated as to the circumstances, it quite clearly appeared that ■such reply did not represent the actual situation. The intestate had no interest in the farm; nor does it appear that he ¡had any interest in the avails thereof.; he had for many years been lame, and. to some extent unable to work. ¡None of his Individual funds had been invested in' the purchase" of the stock or tools upon the farm. In fact, the petitioner held the legal title to all the personal estate upon the farm. There is no pretense that the intestate was possessed of any per'sonal •estate aside from such personal property as was upon the farm at the time of his death, and I am clearly of the opinion thát the evidence discloses that all of this property belonged ■absolutely to the petitioner individually. This being the case, it must be held that the petitioner has satisfactorily established all the requisite facts to. entitle Her to a decree in this matter.

Appraisers will accordingly be appointed,.and upon the filing of their report a decree will-be made for- such disposition of ..the.real estate as such report shows to be advisable.

Decreed accordingly."  