
    In the Matter of the Petition of Marcus T. Hun et al., as Executors, etc.
    
      (Court of Appeals,
    
    
      Filed January 22, 1895.)
    
    Executors—Local assessment.
    The obligation to pay a local assessment for street improvements, imposed upon the property and duly confirmed prior to the owner’s death, is cast upon the devisees who take such real estate, -unless the deceased signed the petition which conferred jurisdiction.
    Appeal from order of the general term of the supreme court in the third judicial department, which affirmed an order of special term granting the petition of the executors of the will of Jane 0. Van Schaick, deceased, giving instructions as to the payment of certain assessments upon lands in the city of Albany.
    
      John J. Linson, for app’lt; John Alex. Beall, for resp’ts, Broad-head et al.; Russell M. Johnston, for petitioners, resp’ts'; Frederic DeP. Foster, for resp’ts, Van Schaick et al.
    
   O’Brien, J.

In this case the executors asked the instructions of the court with respect to their duties and obligations to pay certain assessments, made in the lifetime of the testatrix, upon certain o£ the real estate devised by the will. The courts below have held that the assessments ought not to be paid by the executors, but by the devisees who took the land under the will. The devisees claim that it should be paid by the executors, and this contention presents the only question involved in the appeal.

Jane 0. Van Schaick died May 20, 1893, leaving a will in which the petitioners were named as executors. By the terms of the will she devised certain real estate in the city of Albany to the appellants. The assessments in question had been imposed upon the property and duly confiimed prior to her death, under the provisions of the city charter (Laws of 1883, chapter 298), and have not been paid. The assessments having been imposed for the purpose of paving and regulating streets on which the property was situated, it was necessary, under the provisions of the charter (§ 29), that they should be based upon a petition of a certain portion of the owners of the property to be charged requesting that the improvement be made. When confirmed the assessments became a lien or charge upon the property which could be collected by proceedings for a sale of the same. But no action at law could have been maintained for its collection, nor did it become a debt or personal claim against the owners unless she had signed the petition which conferred the jurisdiction to proceed, and it appeared that she was not one of the petitioners (§ 37). It is the duty of the executors to pay the debts of the deceased and all taxes assessed upon the property which remain unpaid at the time of the death (Code, § 2719), and, unless the assessments in question were a debt or a tax within the meaning ■of the statute, the order appealed from is correct.

The assessments were not a debt, since the testatrix had incurred no express or implied obligation to pay the same in her lifetime, and no action could have been maintained against her by the city, or any other party, for their collection as a personal claim. The burden could have been enforced only through the .statutory proceedings prescribed by the charter against the property upon which it was a specific lien.

It is, no doubt, competent for the legislature to enact that such assessments shall not. only be a charge upon the property and collected out of it, but a personal charge as well, and collected from the person as a debt by action or otherwise; but, as we have seen, the latter remedy was confined by the provisions of the charter to such property owners as, by signing the petition, asked the municipal authorities to undertake the improvement.

The argument in support of the appeal is mainly directed to ■sustain the proposition that the burden resting upon the property at the time of the death of the owner was a tax within the meaning of the statute, and, hence, payable by the executors from the assets in their hands. Smith v. Cornell, 111 N. Y. 550; 20 St. Rep. 116. It is perfectly true that the assessments were imposed upon the real estate by an exercise of the sovereign power of taxation, delegated by‘the state to the governing body of the city. But that does not necessarily make it a tax within the meaning of the statute. The ordinary meaning of that term is the contribution which the citizen is required to pay for his share of the general expense of government, and it may be imposed upon persons or property or both.

Local assessments for improvements in cities or villages are contributions which property owner's are required to pay, not as general burdens for the support of government, but as an equivalent or compensation for the enhanced value which the property has derived from the improvement. The improvement is supposed to have .conferred an additional value upon the property in the locality, and, being a special benefit to particular property beyond what is conferred by general taxation, it is deemed to be equitable and just that the property so benefited should contribute to the expense. Sharp v. Speir, 4 Hill, 77; Sharp v. Johnson, id. 92 In re Ford, 6 Lans. 92; Matter of the Mayor of Brooklyn, 11 Johns. 77; Roosevelt v. Mayor, 84 N. Y. 108; Dillon on Munic. Corp. § 761; Cooley on Taxation, 675.

In the case of taxes imposed for the general purposes of government, there' is a personal obligation upon the citizen to pay, which may be enforced by distress and sale of his goods and by other remedies in the courts, while local assessments, imposed under municipal authority, upon particular property benefited by the improvement, as distinguished from a general tax, are not, as we have seen, a general or personal charge, in the absence of some statute making them such, but are only in the nature of a lien upon the specific property assessed, and the proceedings for their collection are in rem. Cooley on Taxation, 675; Tiedeman on Mun. Corp. § 282; Wolf v. Philadelphia, 105 Pa. St. 25; Litchfield v. Vernon, 41 N. Y. 134; Pierce v. Boston, 3 Met. 520.

The statute requiring the executor to pay taxes imposed upon the property of the testator, prior to his death, refers to the former and not to the latter class of burdens.

The lien of the assessments in this case bears a very close analogy to that of a mortgage upon land that has descended to the heir or passed to a devisee. In such cases the obligation to pay is cast upon the heir or devisee who takés the land. 1 R. S. 749, § 4; Cumberland v. Codrington, 3 Johns. Ch. 229; 3 Redfield on Wills, 414, § 26; 2 Williams on Ex. 1697; Halsey v. Reed, 9 Paige, 454; House v. House, 10 id. 158, 164.

The devisees in this case, therefore, took the real estate burdened with the obligation to pay the assessments, and hence the order of the court below was right and should be affirmed, with costs.

All concur. Order affirmed.  