
    Matter of the Sale of Real Estate to Pay Debts, Etc., of Margaret Rider, Deceased.
    (Surrogate’s Court, Oneida County,
    June, 1910.)
    Subrogation—Voluntary payment — Payment of decedent’s debts by administratrix.
    An administratrix by voluntarily paying off and discharging with her own funds debts of the decedent does not become entitled to be subrogated to the rights of the creditors and to assert their claims in proceedings for the sale of the decedent’s real property for the payment of his debts.
    
      Proceeding to sell real estate to pay debts.
    C. G. Irish, for Ella Rider Theeringer, administratrix.
    A. S. Malsan, for William S. Cobb, creditor, et al.
   Sexton, S.

On the return of the citation in a proceeding to sell real estate for payment of debts, a cited creditor, William S. Cobb, objected to the allowance of the following claims: School tax, $8.73; Whitesboro Water Works, $19; J. L. Pickett, $44.65; corporation tax, $19.48; C. 0. Boff, $10.50; Ella E. Theeringer, $333; Margaret Eider, $333. and William E. Eider, $333, on the ground that said claims are not valid claims against this estate.

In a proceeding of this character the rights of creditors are confined, after becoming parties, to presenting their claims, or objecting to those of other creditors. Code Civ. Pro., § 2755; Matter of' Campbell, 66 App. Div. 478.

In this proceeding the surrogate has jurisdiction to determine the validity of all claims against the estate. Matter, of Haxtun, 102 N. Y. 157.

Upon the trial, the claims of J. L. Pickett, C. C. Boff, corporation tax and school tax were disallowed by consent and the claim of Whitesboro Water Works was allowed by consent at seventeen dollars and eighty-eight cents, so that the only question to be determined is whether the said claims of Ella E. Theeringer, Margaret and William F. Eider, who are the children of the deceased, are valid claims against the estate.

The evidence shows that said Ella E. Theeringer, the administratrix, and her said brother and sister received $1,000 from insurance upon the life of their mother, which they shared equally and all of which they pooled to pay off a real estate mortgage and two promissory notes, matured obligations of the deceased. They now seek reimbursement out of the estate on the theory that, by paying these, claims, they succeeded to the rights of the creditors of the estate whose claims they had paid.

It is claimed by the contestant that all of these ^payments were voluntary a;nd cannot be recovered back, and that- this estate cannot be charged with the amount so paid.

The administratrix testified that she personally paid the mortgage with the equal contributions of herself, brother and sister and took a satisfaction of the same; that in the same manner she paid two notes, and that no demand or request of any kind had been made upon her, or at all, for payment of any of these obligations of the estate. These obligations of the estate were not paid by the administratrix, as such, but by her as an individual, acting for herself and brother and sister. Ho assignment of the mortgage and notes so paid was taken by her. She took a satisfaction of the mortgage and had it recorded and a receipt for the payment of one of the notes, and never has had the note. These were all obligations of this estate held by creditors. It was the duty of the representative of this estate to pay these claims as such out of estate property. By voluntarily discharging the duty of this estate, by individually paying claims against this estate, such a person cannot thereby become a creditor of this estate.

“ Ho person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other to perform, and no debt can be implied in law from a voluntary payment of the debt of another.” First Nat. Bank of Ballston Spa. v. Board of Suprs., 106 N. Y. 488.

It is an elementary principle in such actions that money voluntarily paid out by one for another cannot be recovered back. 1 Pars. Con. 471 et seq. In order to support such an action, it is essential that a request on the part of the person benefited, to make such payment, either expressly, or fairly to be implied from the circumstances of the case, must be proved. Add. Cont. 1055 ; Wright v. Garlinghouse, 26 N. Y. 539; Wellington v. Kelly, 84 id. 546; City of Albany v. McNamara, 117 id. 168; Matter of Hotchkiss, 44 App. Div. 615.

I, therefore, hold and decide that the payment of claims against this estate by Ella R. Theeringer, Margaret Rider and William F. Rider were voluntarily made, hence are not legal claims against this estate and are disallowed.

Decreed accordingly.  