
    Thurlow W. Cleveland and Others, Executors, etc., of David Post, Deceased, Respondents, v. Nellie Rothwell, Individually and as Executrix, etc., of Jane E. Gregg, Deceased, Appellant.
    
      Assignment of mortgages under foreclosure — the residuary devisee and executrix of the mortgagor is emitted to it — waiver of a formal tender of the amount due thereon.
    
    
      A. residuary devisee and executrix of a decedent who, during his lifetime, gave mortgages which constituted at the. time of his death existing liens upon substantially all his real property, is entitled to an assignment thereof to herself or to such person as she may designate upon the payment of the amount due on. the mortgages and the costs of pending'actions to foreclose them, brought by, and at the instigation of, an attorney, who, after having acted for such devisee, had disagreed with her, and refused to act further, in the management of the-estate.
    .No actual tender of the amount is necessary where an offer to pay it and-the costs, of the actions is met by an absolute refusal to give an assignment.
    Appeal by the defendant, Nellie Rothwell, individually and as executrix, etc., of Jane E. Gregg, deceased, from an order of the Supreme Court, made at the Broome Special Term and entered in. the office of the clerk of the county of Chemung on the 8th day of August, 1900, denying her motion to compel the plaintiffs to-assign to her, or to some person for her benefit, the mortgage sought to be foreclosed in tiffs action, and for an order directing the discontinuance of the action without costs.
    
      John C. Dyott, Jr., for the appellant.
    
      Frank C. Ogden, for the respondents.
   Per Curiam:

The appeal in this case and in the case of Maria Wells against the same defendant, brings up for our consideration the question whether the residuary devisee of the mortgagor is entitled, upon payment, to have an assignment of mortgages that have been given by the decedent upon real estate owned by her at the time of her death.

Prior to June, 1900, Jane E. Gregg died, leaving certain real estate upon which she had given three mortgages, one of which, for about $1,000, is held and being foreclosed in this action by the plaintiffs, and the other two, for a like amount, are held and being foreclosed by the plaintiff in the Wells action. The decedent left a will in which the defendant Nellie Eothwell was the sole devisee, and was also named as executrix. The will was duly probated and letters testamentary were issued to the said defendant on the 18th of June, 1900:

The plaintiffs’ attorney in the two foreclosure actions acted for the estate of the decedent upon the proof of the will. Immediately after -the proof of the will there was a disagreement between the attorney and the executrix as to the management of the estate. The attorney claimed that he was familiar with the business of the decedent and had acted for her for several years and could manage, dispose of and close up the estate for the best interests of the creditors and of the devisee. For. that purpose he wanted the title of the real property placed in his control. This’ the executrix and devisee declined to do, and the attorney declined to further act for the estate, and informed the executrix that he would represent the-creditors who were mostly his clients. Thereupon, on the 20th of June, 1900, evidently at the instigation and procurement of the attorney, the two foreclosure actions were commenced. The real estate covered by the mortgages was substantially all the property left by the decedent. .

Soon after the suits were commenced the defendant, Or some one on her behalf, applied to the plaintiffs in' the actions, of their attorney, for an assignment of the mortgages to her, or to some one in her interest. There was evidently an offer to pay the full amount of the mortgages and the costs that had accrued. No actual tender was made, but the plaintiffs, or their attorney, who had full charge of the matters, refused absolutely to make any assignment. This obviated the necessity of an actual tender. (Baumann v. Pinckney, 118 N. Y. 604, 616, and cases cited.)

The defendant is not an heir at law of the decedent. Under the. will, if that stands, she has the title and is interested to realize as much as possible after the payment of the debts. The plaintiffs cannot complain if they get full payment of their mortgages. The rights of general creditors are not prejudiced, and their remedies are not affected.

These actions, in some of their features, are somewhat similar to the case of Bayles v. Husted (40 Hun, 376), where an assignment was ordered on payment of the mortgage and a discontinuance of the foreclosure action was directed without costs.

Under the circumstances shown in the record before us we are of the opinion that the defendant, being the devisee of the title and having a right to have her interests protected, is entitled to an assignment of the mortgages and accompanying bonds upon payment of the amount thereof, with interest to the time of payment and costs to the extent of fifteen dollars in each action.

The assignment, if desired by the defendant, to be made to such person as she may designate (Twombly v. Cassidy, 82 N. Y. 155), the payment to be made within, a time to be fixed by the order, and upon such payment the actions to be discontinued, without further costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion for assignment and discontinuance granted, upon terms stated in opinion.

Order to be settled before Smith, J. Similar order in Wells v. Rothwell impost, p.-).  