
    In the Matter of the Judicial Settlement of accounts of Executors of Hiram Brownell, Deceased.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Executors and administrators—Mortgage—Release oe.
    Decedent’s wife received in 1873 as part of her share of her father’s estate a bond and mortgage given by her husband. Her husband, as exec-tor of her father, had previously satisfied the mortgage. Held, that such satisfaction has no effect upon the bond, and as that was not barred by the statute of limitations his personal representatives were justified in conveying his property to her in payment thereof.
    Appeal from decree of surrogate, settling the accounts of the executors of Hiram Brownell, deceased.
    The father of decedent’s wife died in 1872, being possessed of a bond and mortgage executed by decedent. Shortly thereafter the decedent, who was one of his executors, satisfied the mortgage of record. Said bond and mortgage were assigned to his wife as a part of her share of the estate. After the death of decedent his wife presented to his executors a claim for her share of her father’s estate, with interest, amounting to $34,903.17, which was allowed by the executors, and they conveyed to her the entire estate, amounting to $12,698.26, stipulating that she should pay the debts.
    
      John P. H. Tollman, for ex’rs, app’lts; W. Farrington, for Jane Brownell, app'lt; J. S. Van Cleef and James L. Williams, guardians ad litem, resp’ts.
   Pratt, J.

—The surrogate in his opinion says that the claim of Mrs. Brownell to be a creditor of her husband’s estate to the amount of $34,000 may be just, but he is of opinion that the executors should have interposed the defense of the statute of limitations to defeat the claim, and he disapproves of the conveyance by the executors of the farm, valued at $10,000, in payment of the claim.

The proof leaves little, if any, doubt that the deceased had received the money with which his widow sought to charge the estate.

If, however, the statute of limitations had been allowed to attach, it may be that the executors would have no right to recognize and pay theidebt. But as to a large portion of the debt we think it plain that the statute had not run.

Among the assets which came to Mrs. Brownell from her father’s estate was a bond and mortgage of her husband for $8,000, upon which $1,458 interest had accrued. This was due upon a sealed instrument.

The husband, being executor of the estate of his wife’s father, satisfied the mortgage of record; but he did not pay the bond. The bond was his own debt, due to his wife, and the satisfaction of the mortgage had no effect upon the bond. 'That remained in force, and at the time of Mr. Brownell’s death the debt and interest must have exceeded $16,000. That was much in excess of the value of the farm conveyed in payment of the wife’s claim.

The amount of the real and personal estate did not exceed $12,700. The debts of the estate paid and discharged far exceeded that amount

The only contestants are legatees. As no surplus remains after payment of the debts, it is plain the legatees can take nothing.

The surrogate’s decree should be reversed and the estate settled on these principles.

No costs.

Barnard, P. J., and Dykman, J., concur.  