
    In the Matter of the Estate of Nellie E. Very, Deceased.
    
      (Surrogate’s Court, Cattaraugus County,
    
    
      Filed June, 1898.)
    l. Executors — Funeral Expenses of Wife.
    A husband who is the executor of his wife is entitled to credit for her funeral expenses; but not for her medicine and medical expenses, as these are necessaries which he is bound to furnish her.
    ■2. Life Tenant — Taxes and Other Charges — Permanent Improvements. '
    An executor who is the life tenant cannot be allowed for insurance, taxes and repairs; nor for permanent improvements made by him, as these are voluntary acts which give him no claim.
    3. Same — Interest on Incumbrances.
    A life tenant is bound to pay interest on the incumbrances, and is not entitled to reimbursement therefor from the estate.
    4. Sale of Real Estate — Misapplication of Funds.
    Where a decedent left sufficient personal property to pay debts and funeral expenses, the fact that it was misapplied by the executor does not entitle the creditors to resort to the real estate for the payment of their demands.
    Proceedings for the disposition of the real estate of a decedent for the payment of his debts.
    
      
      J. J. Inman, for petitioner; W. K. Harrison, special guai--■dian, in person; W. R. Pinder, for subsequent mortgagee; J. G. Johnson, for creditors.
   Davie, S.

The decedent died at Salamanca, on May 19, 1895, leaving a will which was admitted to probate on May 31st of the same year, and on that day Tetters testamentary were issued to E. W. Very, the executor named in the will, who is the petitioner in this proceeding.

The will directs the payment of all of the decedent’s just debts and gives and bequeaths the use and income of the remainder of the estate, both real and personal, to the petitioner; at his death, such remainder to go to the two sons of the testa.-trix, share and share alike, absolutely.

The total amount of the personal estate coming into the hands of the executor was $2,096.50; the total amount of the debts paid by him, $1,098.46; debts remaining unpaid, $281.51. The executor has also paid the funeral and burial expenses, including a marker at the grave, to the amount of •$264.93. No controversy arises in regard to any of these items.

At the time of the death of the testatrix a part of the land described in the petition was incumbered by a mortgage, held by one Susan Very, to the amount of $150. This incum-brance had been placed upon the land by a prior owner and the land came to the testatrix charged with such mortgage; but she had not become personally liable for the payment of the mortgage indebtedness. This mortgage was paid off by the executor. A portion of the lands were also incumbered by a mortgage thereon to one C. S. Ilubbell to the amount of $250. This mortgage was given by the testatrix and her bond accompanied the same, and this indebtedness, $250 principal and $14 interest, was paid by the executor. The testatrix had also executed and delivered to the Salamanca Loan and Building Association' another mortgage upon said premises 'providing for monthly payments, in accordance with the regulations of such association. The exeeutor has paid upon the principal of this mortgage the sum of $177.50; interest, $88.75; and fines, $5.40. The executor has also paid for medicines purchased for, and medical attendance upon, the testatrix. He has, moreover, paid the taxes, insurance and expense of temporary impairs upon the real estate. He has expended considerable sums in making permanent improvements, and has thereby undoubtedly enhanced the value of the premises. The contestant objects to the allowance of all these items for medical attendance, taxes, repairs, improvements, interest, and to all payments made upon incumbrances, upon the ground that none of them are proper disbursements to be taken into consideration in determining the question as to whether or not the real estate should be sold for payment of debts.

The payments for medicines and medical services are not proper charges against the estate; the primary liability rests upon the. husband to provide his wife with necessaries suitable to her station in life. 2 Kent Com. (7th ed.) 128; Freeman v. Coit, 27 Hun, 450.

There is no evidence that the testatrix ever assumed the payment of these bills or in any manner charged her estate with the payment of the same; and the husband, although having extinguished these obligations, is not entitled to be reimbursed therefor out of the estate.

A different rule prevails in regard to the funeral expenses, although it is difficult to discover any substantial reason for the distinction. It seems, however, to> be well-settled law that the husband, on the settlement of his accounts as executor of the will of his wife, should be allowed out of her estate the necessary and proper funeral expenses paid by him. McCue v. McCue, 14 Hun, 562.

The expenses incurred by the executor for insurance, taxes and repairs cannot be allowed in this proceeding. They were not debts of the" testatrix' within the meaning' of dhe statute under which this proceeding is brought; moreover, the executor was personally liable for the same. Under the will, he was tenant for life of all the lands described in the petition, and as such life tenant he was under obligation to pay all taxes assessed upon the estate and all betterments that are not permanent in their nature. Am. & Eng. Enc. of Law, vol. 6, p. 832; Sidenberg v. Ely, 90 N. Y. 257; Deraismes v. Deraismes, 72 id. 154.

Nor can such tenant make repairs of a permanent character upon the property at the expense of the inheritance. He is bound to make, repairs at his own expense. The making of permanent improvements is a voluntary act on his part, which gives no claim on the reversion. Am. & Eng. Enc. of Law, vol. 6, p. 882.

In relation to the payments made by the executor upon the incumbrances, it is a well-established principle “ that where there is an estate for life, and a remainder in fee, and there exists an incumbrance binding the whole estate in the land, and 'no special equities between the remainderman and the tenant for life can be shown, the latter is bound to pay the interest accruing during the continuance of his life estate, and the owner of the future estate is to pay off the principal of such liens.” Moseley v. Marshall, 22 N. Y. 202; House v. House, 10 Paige, 158; 4 Kent Com. 74.

In view of the fact that I have reached the conclusion that this proceeding must be dismissed, I have refrained from passing upon the various items of the executor’s account, except in a very general way, not wishing to prejudice the rights of the parties interested when their respective equities come before some other tribunal for adjustment. I have examined such accounts to a sufficient extent to make it entirely clear that the total amount of the indebtedness of this estate, including funeral expenses, is considerably less than the value of the personal assets coming into the hands of the executor. • It is very clear from the evidence that such assets would have been ample for the payment of all debts and funeral expenses had not the executor consumed a considerable portion thereof in paying for improvements, taxes, insurance, and upon incumbrances. The question thereby presented resolves itself simply into this: If the personal estate coming into' the hands of an executor is more than sufficient to pay all the indebtedness and the funeral expenses, and such personal estate is misapplied by the executor, can the creditors resort to the real estate for the payment of their demands? . This question cannot be answered in the affirmative upon the authority of the Matter of Bingham, 127 N. Y. 296. It was there held that the rights of creditors to the payment of their debts, out of the proceeds of the sale of real estate, in the absence of proof of laches on their part, may not be denied because of the fact that the executor has squandered the personal estate. An examination of the facts upon which that case was decided shows that the debts amounted to’ over $30,000, while the personal estate did not exceed $5,000, so that no amount of prudence or diligence on the part of the executor could have resulted in the payment of the debts from the personalty. The case of Kingsland v. Murray, 133 N. Y. 170, however, seems directly in point; in that case, like the one at bar, it appeared that the decedent left personal estate sufficient to pay all his debts, had the same been properly applied, and it was held that, if the administrator had wasted or squandered the personal property so that it became insufficient to pay debts, the creditors could not resort to the real estate.

It is expressly provided that, before a. decree can be made for the disposition of the real estate of a decedent for the payment of debts, it must be made to appear that all the personal property of the decedent which could 'have been appliéd to the payment of his debts and funeral expenses has been so applied; or, that the executor has proceeded- with -reasonable diligence in converting the personal property into money and applying it to the payment of the debts and funeral expenses, and that it is sufficient for the payment of the same. Code Civ. Pro., §. 2759, subd. 5.

The petition in this proceeding should be dismissed.

A decree will be accordingly entered to that effect. The fees of the stenographer to the amount of $-, and the fees of the special guardian to the amount of $10, should be paid by the executor out of any funds now in his hands or which may hereafter come into his hands, belonging to the estate.

Decreed accordingly.  