Upson v. Badeau

The Surrogate. Upon the final accounting of the executor, an effort was made to charge him with the full amount of the consideration money named in a deed of some real estate belonging to the testator and sold by the executor under a power in the will. The property was sold for $2000, and there was a mortgage on the premises for $1,400, and it is urged that as the deed does not declare that the mortgage constituted part of the consideration, the executor, instead of being only charged the difference, should be held responsible for $2000. The clause in the executor’s deed simply declares an existing fact, that the property is subject to a mortgage, and the conveyance is made subject to it; but whether or not the mortgage is assumed by the grantee as part of the consideration mpney, or whether the statement of the consideration money includes the amount of the mortgage, is not expressed. The consideration is named at $2000, and that is not disputed, and the mortgage was for $1,400 and interest, and that is not [15] disputed. I think the presumption is that the mortgage was allowed as part of the consideration money—that such is the inference to be drawn from the deed. If this were not so, as the question is what was the property sold for, how much did the executor receive, and how much is he bound to account for, he has a right, when evidence is offered to prove that he received a certain sum, to show that the sum so charged was the whole value of the property, and was not in fact all received, but that certain deductions were made. I do not think that the statement in the deed as to the incumbrance expresses whether the amount of it was included in or excluded from the statement of the consideration money ; but if it did, I am of opinion it would still be competent for the executor to show the error, have the mistake corrected, and his liability restricted to the amount really received. (M’Crea vs. Purmort, 16 Wen., 460 ; 17 Mass., 249.) The question before me is, for what sum did the executor sell, and what sum did he receive. The deed proves he sold for $2000. This is not denied, but the executor claims to prove that he did not receive the $2000, in consequence of a mortgage to which the property was subject. He does prove this, and establishes that the property was not worth more than $2000; that it was sold for that sum, and the agreement was to pay the mortgage out of it; and yet it is sought, in face of all these facts, clearly proved, and indeed uncontroverted, to mulct the executor in the sum of $1,500, for a supposed mistake in the deed. I cannot assent to such a doctrine. In adjusting the accounts of executors, this court is governed by principles of equity as well as of law, and even attaching to the recital in the deed of conveyance the consequences the counsel for the legatees urges, it is at all times competent for the executor here, as in a court of equity, unimpeded by technical rules, to show the fairness of his dealings—the real nature of the transaction, and the amount for which he should, in fact, be held liable. Upon any other rule he might be made the victim of a mistake while acting as a trustee and honestly discharging his duty.