
    David Howell, Plaintiff, v. Ida May Randall, an Infant, John W. Lewis, as General Guardian of Ida May Randall, Charles Cowles, as Executor, Etc., of Cynthia M. Randall, Deceased, et al., Defendants.
    (Supreme Court, Madison Special Term,
    September, 1901.)
    Creditor’s action against legatee — Merger by acceptance of devise — Construction of will when refused — Code C. P., §§ 1841, 1844.
    Where a son devises real estate to his mother subject only to an understanding between them that she shall support and educate his infant daughter, and the mother, as her construction of the understanding, thereafter devises all the real estate, remaining in her after certain conveyances made by her, to the infant, the latter, by accepting this devise, loses her lien for support out of the remaining land as the lien is merged in it, the land becomes subject thereafter to the debts of the said mother and may be reached by her creditor, secured by her will, where he complies with the requirements of Code C. P., §§ 1841, 1844.
    In such an action no construction of the will of the said mother can be had nor can her executor obtain one by interposing an answer seeking one.
    Action by the plaintiff, a creditor of Cynthia M. Randall, to enforce his debt against real estate alleged to belong to her, although held by her devisee, the defendant Ida May Randall.
    Edwin J. Brown, for plaintiff.
    Gill, Stillwell & White, for Ida May Randall.
    Joseph Beal, for Charles E. Cowles; executor, etc., and others.
    H. W. Coley, for Albert and Emily Dygart, administrators, etc.
    James B. Jenkins, for Alice Cook.
   Forbes, J.

The plaintiff is a creditor of the estate of Cynthia M. Randall, having had a claim against her, at the time of her death, of twenty-nine dollars and thirty-eight cents.

Cynthia M. Randall, deceased, was the mother of Sands H. Randall, deceased. Ida May Randall, one of the defendants, is the daughter of Sands H. Randall. Sands H. Randall died, leaving a last will and testament under and by which he devised to his mother certain real estate. The will of Sands H. was admitted to probate, by the surrogate of Madison county, on the 18th day of February, 1888, and was recorded as a will of real estate, and on that day letters testamentary were issued thereon to Hiram L. Rockwell.

By his last will and testament, Sands H. Randall devised to his mother the real estate set forth in the plaintiff’s complaint. Under said will, the said Cynthia M. Randall took the absolute title to said real estate, subject, however, to an understanding between the testator and the said Cynthia M., that she would care for, maintain, support and educate the defendant, Ida May Ran- ' dalL

Certain portions of his real estate were sold and conveyed by Sands H. Randall before his death; and, subsequently, before the death of Cynthia M. Randall, certain other portions of said real estate, which came to her under said will, were sold and conveyed by her. The grantees under said conveyances are made parties to this action; no personal claim is made against any of said defendants, and on the trial the plaintiff’s attorney disclaimed the right to recover against them in this action.

Cynthia M. Randall made her last will and testament, devising to her granddaughter, the said Ida May, all the remainder of said real estate, absolute, after the payment and discharge of all the testator’s lawful debts; and she appointed the defendant, Charles E. Cowles, as the executor of said last will and testament. Cynthia M. Randall’s will was admitted to probate February 11, 1894.

It was undoubtedly the intention and design of Sands H. to make the support and education of the defendant, Ida May Randall, a charge and lien upon said real estate; and the said Cynthia M. Randall undoubtedly had knowledge of such design, and that knowledge was probably the very foundation of the devise to the said Ida May Randall from her grandmother, and was her construction of the benefit clause in her son’s will in favor of the said Ida May Randall.

The defendant, Ida May Randall, appeared in this action by her guardian ad litem,, and by an answer submitted her rights to the court.

The question is presented whether the support, maintenance and education of Ida May Eandall is to be regarded as a charge and a continuing lien upon said real estate, so devised to her, by her grandmother.

I think it must be held that-by accepting the devise, under said will, said real estate became charged with the payment of all of said Cynthia M.’s lawful debts; and that such acceptance by said defendant Ida May, operates as a suspension of her lien for her support, and is now merged in the title which she took under her grandmother’s will. Seeber v. Seeber. Opinion, Forbes, J. MSS. Hart v. Castle, 9 N. Y. Supp. 622.

The lien of said Ida May Randall, under the will of her father, was of no greater binding force than would have .been a mortgage placed upon said real estate to secure her support, maintenance and education. A deed from her grandmother to Ida May of said real estate, without any reservation of that mortgage lien, or without any intention expressed not to merge it in the absolute title, would have operated as a merger and destruction of the said mortgage lien; and I can see no distinction, in principle, between the lien in question and a mortgage. Asche v. Asche, 113 N. Y. 232; Curtis v. Moore, 152 id. 159; Betts v. Betts, 159 id. 547, affg. s. c., 9 App. Div. 210; Ewell v. Hubbard, 46 id. 383.

Three years having elapsed since the granting of letters testamentary to the defendant Cowles, and a claim having been presented to the excutor by the plaintiff in this action within the time and allowed, and said devise having passed absolutely to the said Ida May Randall, by the will of her grandmother, this action is brought against her under sections 1841 and 1844 of the Code of Civil Procedure, to recover the debt in question, the payment of which was provided for by the last will and testament of the' said Cynthia M. Randall; this action can be maintained by the plaintiff, all of the necessary parties having been brought before the court. Edmonds v. Edmonds, 62 N. Y. Supp. 652; Rogers v. Patterson, 79 Hun, 483; s. c. affd. in 150 N. Y. 560; Long v. Long, 142 id. 545.

v This action is not for the construction of the will of Cynthia M. Randall, and if that were the object it could not be maintained. Heither can the executor of the last will and testament of Cynthia M. Randall obtain a construction of said will, under an answer interposed by him for that purpose. Smith v. Hilton, 50 Hun, 236; Dill v. Wisner, 88 N. Y. 153.

Upon the trial certain evidence was admitted, for the purpose of getting possession of all the facts claimed by the parties, but which cannot be, and is not here, used for the purpose of construing said will, neither can such evidence be used to fix and establish the claims of any other creditor, save the plaintiff in this action, whose claim only has been properly proved and established.

Judgment is ordered for the plaintiff, and the question of costs to the plaintiff is hereby reserved.

Judgment for plaintiff.  