
    Henrietta C. Smith, App’lt, v. John T. Cornell, as Executor, etc., Resp’t.
    
      (Court of Appeals,
    
    
      Filed December 11, 1888.)
    
    1. Executors and administrators—Obligation to pay taxes.
    By the provisions of the Revised Statutes of this state the obligation is imposed upon executors and administrators, next after debts entitled to a preference under the Laws of the United States, to pay taxes assessed upon the estate of the deceased previous to his death. Part 3, chapter 6, title 3, article 3, section 37. • In obedience to these provisions, the executor or administrator must apply the personal property of the estate as directed. Taxes unpaid at the testator’s death are his personal debts.
    3. Conveyance of land — Obligation oe grantee to pay existing incumbrances.
    In the absence of a covenant or agreement to that effect contained in an instrument of conveyance, the grantee of lands does not assume a personal obligation to pay existmg*incumbrances.
    3. .Same—When grantee not bound to pay taxes.
    The testator, at the time of his death, was seized of certain real estate, •and by his will he devised the same to his executor in trust for certain uses and purposes. This plaintiff, his only child, brought an action, -which resulted in said trust being declared unlawful, an t that the lands descended to plaintiff as sole heir-at-law of the testator, and in May, 1883, a sale was had for the taxes in arrears. At the time of the testator’s death there were unpaid taxes. Subsequently the lands were sold pursuant to a decree in an action brought against the executor by the widow of the deceased, fór the recovery of her dower. The referee conveyed the premises to this plaintiff by deed, whereby the conveyance was made subject to the nnpaid'taxes, etc. There was sufficient personal estate to discharge the tax liens. This action was brought to compel the executor to pay the taxes imposed, and unpaid, prior to the testator’s death. Held, that the acceptance by the plaintiff of the referee’s deed conveying the land subject to taxes, etc., did not operate constructively or actually as her consent, that the executors should not apply the personal property in payment of those liens, nor did the plaintiff thereby enter into any obligations respecting these unpaid liens.
    4. Same—When heir not bound by decision in action against the EXECUTOR.
    The action by the widow against the executor, in his capacity as trustee of the real estate under the will, to which the plaintiff herein was not a party, did not bind this plaintiff hy its results. Her action to set aside the trust was irreconcilable with the supposition of any waiver on her part of her legal rights.
    Appeal from the order of the general term of the superior court of the city of New York, reversing the judgment rendered at special term and ordering a new trial.
    
      Benj. M. Stillwell, for app’lt; Horace Secor, Jr., for resp’t.
   Gray, J.

At the time of the testator’s death, in January, 1883, he was seized of certain real estate in New York city, and by his will he had devised the same to his executor, in trust for certain uses and purpose's. As the result of an action brought by this plaintiff, his only child, it was, in November, 1883, adjudged* and decreed that the trust, attempted to be created by the will, was an unlawful one, and that the lands descended to plaintiff as sole heir at law of the testator.

At the time of his death, there were unpaid the taxes imposed upon the lands for several years past, and in May, 1883, a sale was had for the taxes in arrears for the year 1879. Immediately, upon obtaining her decree, this action was commenced by the plaintiff to compel the defendant, as executor of her deceased father, to pay, from the personal property in his hands, the taxes remaining unpaid and to redeem the lands from the tax sale thereof. The executor defended the action and alleged that the plaintiff had purchased the lands at a sale had'in October, 1883, pursuant to the terms of a decree in an action brought against him by the widow of the deceased for the recovery of her dower, and that the sale and the referee’s conveyance to this plaintiff were made subject to the unpaid taxes and sale therefor mentioned. The personal estate was sufficient for the purpose of discharging the tax liens, and no claims had been presented to the executor, pursuant to his notice, of a character entitled to a preference, under the laws, over taxes imposed and unpaid prior to the testator’s death.

The contention- of the appellant .on these facts is that the general term have erred in reversing the judgment of the special term, which adjudged that the defendant, as executor,' should, pay the taxes in question, and we think the appeal should be sustained.

The theory of the defense is to the effect that the purchase by this plaintiff at the sale under the decree in the-. dower action, and the acceptance of the deed of the referee conveying, subject to unpaid taxes,'etc., operated to release the executor from the legal obligation resting upon him to discharge those debts of the testator. The general term accepted that theory, and thereby fell into serious error. The learned judge who delivered the opinion of the general term below said that when this plaintiff bought the premises, “subject to taxes, it was the equivalent of an obligation to the defendant that the land should be the primary fund for the payment of taxes, and not the personal property of the estate,” and that she “thus consented that the executor"need not so apply the personal estate.”

No such consequences did, or could possibly flow from the transaction of purchase by this plaintiff, either in equity or at law, and the defendant.was never absolved from his duty as executor to apply the personal estate in his hands to the payment of these taxes. By the provisions of the Revised Statutes of this state the obligation is imposed upon executors and administrators, next after debts entitled to a preference under the laws of the United States, to pay “taxes assessed upon the estate of the deceased previous to his death.” Part 2, chap. 6, title 3, art. 2, § 27. This preference is commanded by the statute and in obedience to the command the executor or administrator must apply the personal property of the estate as directed. The taxes unpaid at the testator’s death were his personal debts (Seabury v. Bowen, 3 Bradf. 207; Griswold v. Griswold, 4 id., 216), and we are unable to find any reason for supposing that the rights of this plaintiff, as his heirs at law, with respect to their payment, were affected by the decree in the widow’s dower action, or by the conveyance thereunder. That action was by the widow against the executor in his capacity as trustee of the real estate under the will, and this plaintiff was no party to it and could not in any sense, be considered bound by its result. To the contrary, her pending action to have that trust declared invalid was a distinct and emphatic assertion of a claim, as hostile to the trust title in the executor,- as it was irreconcilable with the supposition of any waiver on her part of her legal rights. One effect of her purchase at the sale under the decree in the dower action was to protect her interests in the estate. She sacrificed nothing and conceded no rights away. When subsequently, by the decree in her action, the trust in the executor was declared unlawful, matters were re-instated in the condition in which they before the sale dower action; with this sole feature that from the heir at law’s money the widow’s dower interest had been satisfied. The decree in the widow’s action was ineffectual to give a good title to any one, as the title had never passed out of the heir at law; but it had served the end of admeasuring the dower right of the widow. Even had the sale been valid in the widow’s action and to a stranger, as it was subject to the lien of unpaid taxes, the value would have been pro tanto diminished and this plaintiff would have had her claim upon the personal estate in the executor’s hands for reimbursment. How is the question effected because she herself stepped in and bought the property charged with the lien?

She was not a party to the action and was not bound by any step or proceeding in its conduct; its force was against the executor of the will as invested with the legal title to the lands through the devise to him in trust; the subsequent judgment in the pending action by this plaintiff, declared the trust illegal and left the title in this plaintiff as heir at law, as of the time of testator’s death; and, when she bought in the lands, she made no agreement, expressed in words importing such, or to be implied from the conveyance, assuming the payment of the existing encumbrances.

In the absence of a covenant, or agreement, to that effect contained in the instrument of conveyance, the grantee of lands does not assume a personal obligation to pay existing encumbrances. Belmont v. Coman, 22 N. Y., 438; The Equitable Life Ins. Co. v. Bostwick, 100 id., 629. The plaintiff, as the grantee in the referee’s deed, conveying subject to taxes, etc., thereby entered into no obligation respecting these unpaid liens. Its .acceptance by her neither had that effect, nor did it operate constructively, or actually as her consent that the executor should not apply the personal property in payment of those liens. There was no assumption clause in plaintiff’s deed for the payment of any encumbrances, and neither in equity, nor at law was that which was the debt of the testator changed into a debt of her undertaking. Thus there is a total absence in this case of the elements out of which to construct a theory of an obligation express or implied, on plaintiff’s part, to pay these taxes; or of an agreement by her that the executor should be released from his legal liability in respect of their payment. There is nothing here to alter what should be the invariable rule that the personal property of a testator is the primary fund for the payment of his debts, and that the land or the heir or devisee of. the same in respect thereto stand simply as sureties for their payment.

In this case the executor had no administrative rights over these lands, or their proceeds. If the personal property were insufficient to pay the debts, he, or any creditor, had a statutory right to apply to the surrogate for a decree directing some disposition of the real property for that end, and the proceeds thereby arising would be paid into the sufrogate’s court. Code of Civil Procedure,' sections 2759, 2786. The idea of the learned judge at general term, with respect to the relation of the defendant, as executor, to the real estate, was under an evident misapprehension; he had no right of control over the same; but simply the right, common to him and to the creditors, in a certain contingency, and upon a proper showing of facts, to call into exercise the power of the surrogate’s court over the real estate of the decedent. Nothing in the record calls for any further expression of opinion, and, for the reasons stated, the order of the general term should be reversed, and the judgment of the special term should be affirmed with costs to the appellant in both courts to be paid out of the fund in the defendant’s hands as executor.

All concur.  