Rapalye v. Rapalye

By the Court, Birdseye, J. The judgment appealed from must be affirmed, for the reasons stated by the learned judge at the special term. I concur in the views which he has there, expressed, and am willing to adopt them as the opinion of this court. [620] But as two very recent authorities were cited before us which were not before him, it is proper to refer briefly to them. They are Waldron v. Waldron, (4 Bradf. Sur. R. 114,) and Taylor v. Wendel, (id. 324.) They both relate to the third and principal point discussed below, whether the devisee takes the land devised, subject to the mortgage upon it, or relieved from it by a charge of the debt upon the personalty. As I understand those cases, they both sustain the views on which the judgment at special term proceeded. In Waldron v. Waldron, the intent of the testatrix, upon the whole testamentary scheme, was clearly to make an equal division of her estate. That design could not be effectuated, if the statutory riile should apply. (1 R. S. 749, § 4.) The will directed that the executors should pay and satisfy all the debts of the testatrix, “whether on bonds and mortgages heretofore made and executed by me, or which may be hereafter made and executed by me.” The learned surrogate held, very properly, in my judgment, that this provision of the will relieved the lands and threw the burden of the mortgage debts on the personal estate. In Taylor v. Wendell, the same learned jurist says that the provision of the statute above referred to, is never disturbed unless by some clear and express direction in the will. The provision in that will was that, “all the debts and sums of money” which the testator should owe at the time of his decease, were to be paid by the executors. The surrogate said this was merely the usual direction as to the payment of debts, and showed no sign of an intention to modify the statutory rule; and he held that the land devised must bear its own burden. I agree with the counsel for the appellants, that no particular expression or form of words is necessary to constitute such a direction as the statute requires, that the mortgage be paid in some other manner than by the devisee. Any provision which clearly expresses that intent will, I think, be sufficient. But before it can prevail against the new rule of distribution introduced by the statute, there must appear, from the terms [621] of the will itself a design to modify the statutory rule; to apply to the particular case in hand a principle different from that which the law has made generally applicable to cases where lands descend, or are devised, subject, to a mortgage. [Kings General Term, December 7, 1857. S. B. Strong, Emott and Birdseye, Justices.] That may be done, by a reference either to the statute, or to the mortgage debt, to be paid otherwise than as the statute directs. It may perhaps be done, in other ways, and by different forms of expression. But the expression which is to take the case out of the statute must be so clear and distinct that it cannot be satisfied by a payment of the testator’s debts, in the order and manner which are prescribed by law. The judgment appealed from must be affirmed, with costs.