Peck's Appeal from Probate

Hinman, C. J. The executor appealed from the decree of probate, ordering him to pay a dividend on all the general claims allowed by the commissioners against the estate of Thomas M. Lyon deceased, on the ground that before the making of the decree, and after the allowance of the claim of the savings bank against the estate, the same was satisfied either in whole or in part. It appears that the only satisfaction which the savings bank is claimed to have received, is, that it has procured a decree of foreclosure of a certain mortgage given by the deceased and others, to secure the claim allowed by the commissioners against the estate of the deceased, which foreclosure is to take effect and become absolute, if the claim is not paid on or before the 2d of November, 1862, about six months subsequent to the order or decree of probate appealed from. The statement of the ground on which this appeal rests, would seem to be-all that is necessary to show that it should be dismissed. The decree of foreclosure, before it has become absolute by the expiration of the time limited for redemption, is no more a satisfaction of the debt, or of any part of .it, than is a new or additional security given for it. If, as was suggested, there is any hardship in the creditor’s receiving his dividend, and then taking the land under the decree, it is. [217] one that the executor may relieve himself of by paying the debt, and if the property is worth redeeming it is to be presumed he will do it. Or he may procure an order and sell the interest of the deceased in the equity of redemption ; in which case it would undoubtedly bring on the sale just the amount of the dividend paid more than it otherwise would, because the mortgage debt would to that extent be reduced. We advise the superior court to affirm the decree of probate. In this opinion the other judges concurred.