Finch v. Houghton

By the Court, Cole, J. The matters contained in this record are not sufficient to raise the objection taken in the first point of the brief of the counsel for the appellant. That objection is, that the respondent has no right to bring the action to foreclose the mortgage mentioned in the complaint. He sues as administrator with the will annexed. And it is insisted that it appears that Joseph W. Thombs and Sarah Thombs were appointed executor and executrix of the estate of Thomas Thombs, and entered upon the. duties of their trust, and that said Joseph W. afterwards resigned, when the respondent was appointed administrator cum testamento annexo. The executor, it is said, cannot resign, and therefore the appointment of the respondent as administrator is void. There is nothing, however, in the record which shows that Joseph W. Thombs ever intermeddled with the effects of the testator, or did any acts which would amount to an administering upon the estate. Ward, in his affidavit, states that Joseph W. Thombs and Sarah Thombs'were appointed executor and executrix of the last will and testament óf Thomas Thombs, deceased, referred to in the complaint; that Joseph W. Thombs was one of the legatees in the will, and that subsequently he resigned the office of executor, and that Sarah Thombs remained sole executrix. This, in substance, is all that appears in reference to the resignation of the executor, and it is clearly insufficient to show that Joseph W. Thombs attempted to resign after he had accepted the trust and entered upon the administration of the estate. The law is perfectly well settled, that a person appointed executor cannot be compelled to act, but may refuse to qualify, or make a valid renunciation of. the executorship, provided he does- so in season and before he has done any act which indi [157] cates an intention to accept the trust. 1 Williams on Executors, pp. 227 et seq. And our statute expressly provides that where a person named as executor in any will refuses to accept the trust, or neglects to give the proper bond for twenty days after the probate of the will, the county court may grant letters testamentary to the other executors, if there be any who are capable, and willing to act, or may commit administration of the estate, with the will annexed, to such person as would have been entitled to the same if the testator had died intestate. Sections 4 and 5, chap. 98, R. S. The presumption arising in the case is, that Joseph W. Thombs declined to qualify as executor, or made a valid renunciation of the trust before he in any way intermeddled with the estate, and when he had a right to decline to act as executor. A like answer must be given to the second objection taken by the counsel for the appellant. It is claimed that the appointment asjexecutor of Joseph W. Thombs, one of the persons who executed the bond and mortgage, and who is personally liable for the debt, extinguished the debt. But it is very clear that there is not enough in this record to raise that question. Eor assuming the general rule of law to be, that if a creditor appoints his debtor his executor, and the debtor does not renounce the trust, then such appointment operates as an extinguishment or release of the debt, yet this rule is of not universal application. On the contrary, whenever, from the whole will, it appears that it was not the intention of the testator to discharge the debt by making his debtor his executor, then such appointment will not have that effect. Marvin v. Stone, 2 Cowen, 781; Stevens v. Gaylord, 11 Mass., 256 ; Winship v. Bass, 12 id., 199, 204. If the will were before us, it might be manifest from its provisions that Joseph W. Thombs remained liable for the debt due upon the mortgage notwithstanding the trust committed to him, and that the intention of the testator was that the amount should be assets in his hands to pay debts or legacies. There may be a deficiency of assets, and creditors [158] or legatees may be wronged, if it is held that this debt is extinguished or released. ■ And it is very apparent that, without having the will before us, we cannot, upon the imperfect statements in this record, hold that the mortgage debt has been discharged and that the respondent cannot maintain the foreclosure action. This is an appeal from an order appointing a receiver. We are satisfied from the affidavits read upon the hearing of the application, that, a prima facie case was established for the appointment of a receiver. The decided weight of testimony tends to show that the mortgaged premises are not an adequate security for the payment of the mortgage, while those personally liable are probably not able to pay the deficiency. The whole mortgage debt is due, and considerable interest, which was payable annually, remains unpaid. Besides, those in possession neglect to pay the taxes, and there are many circumstances disclosed which tend strongly to show that the appellant has endeavored to obtain some tax deeds upon the mortgaged property to defeat the mortgage. It appears that he is the owner of the equity of redemption, in possession, and therefore an indispensable party to an action of foreclosure. It is insisted that lie is in possession and holds the premises under a paramount legal title, namely, certain tax deeds upon which the three years’ limitation has run, and hence that he should not be compelled to surrender such possession to a receiver. Did the affidavits in the case establish such a state of facts, it might well be that a court of equity would refuse to take the possession from him. But they do not. It no where appears the appellant entered into possession under his tax deeds and claimed to hold adversely to the original owners. On the contrary, fwe think the presumption is that he went into possession under his conveyance as purchaser of the equity of redemption and subject to the mortgage. This is the legal presumption from all that appears in the case; and as there are some circumstances which tend to throw suspicion on the [159] fairness of the appellant’s conduct, a receiver was rightly appointed. Order affirmed, with costs.