In re the Appeal of Wisner

Graves, J. Upon the final settlement before the Judge of Probate of the account of Mrs. Wisner as the executrix of her husband, the late Governor Wisner, certain items in her account amounting in the aggregate to $3151.78 paid by her in satisfaction of a mortgage upon the homestead place, formerly belonging to the testator, were disallowed and she appealed to the Circuit Court, where the disallowance by the Judge of the Probate was affirmed. It appears by the record that in 1857 Mr. Wisner gave his note to Catharine H. Wisner for $3000, and to secure the payment of the same, executed his mortgage on his homestead to said Catharine H. Wisner. That in the summer of 1862, while in command of a regiment of volunteers then organized at Pontiac, in this State, where he resided, he was ordered to the field with the regiment, and¡in August of that year made preparations to repair to one of the Southern States in compliance with the order. That under these circumstances and on the 25th of August 1862, he executed to his wife, the said Angeolina Wisner, a deed purporting to convey to her the remainder in fee in the homestead, upon which he resided, and to become an estate in possession on the termination of an estate for his own life, which he saved to himself. The consideration stated in the deed was $10,000 together with other good and valuable considerations, and it was expressly declared in the instrument, that the conveyance was subject to what remained unpaid on the mortgage to Catharine H. Wisner, and the covenant against incumbrances in the deed also ex [449] pressly excepted this mortgage. The deed was acknowledged, on the day of its date. It farther appears that on the succeeding day, Mr. Wisner made his will and appointed Augustus C. Baldwin executor and his wife, the said Angeolina, executrix thereof. That by the first clause of the will the testator declared that after all his lawful debts should be paid, he devised the homestead in question to his wife, the said Angeolina in fee, and by the second clause that he gave to his four children all the residue of his estate real and personal whether then possessed or subsequently acquired. That on the 3rd of September following, the testator made his general power of attorney to his said wife, by which he empowered her generally to transact business for him and especially to sell and convey his real estate, and that just before he left home for the South, which was on the 4th of September, he handed the deed and will to his wife and they were then placed by her in the safe. That on the day after, being the 5th of September 1862, she caused the deed to be placed on record; and before any further payments were made on the mortgage, and on the 5th of January 1863, the testator died in the state of Kentucky. It was also shown that when this deed was given, Mr. Wisner was possessed of personal property of the value of about 15,000, the whole of which he conveyed to his wife Angeolina, and it does not appear that he subsequently acquired any or that he was possessed of any at the time of his death. On the 4th of April 1863, the widow paid the first item of $100 on the mortgage, but in some little time thereafter Mrs. Catharine H. Wisner, the mortgagee, commenced a foreclosure of the mortgage making Mrs. Angeolina Wisner, the the widow and grantee, a party in her individual character only, and thereupon the latter paid the balance of the mortgage debt out of her own means. Such are the main facts in the case, and the question is whether the mortgage to Catharine H. Wisner was, as [450] between Mrs. Angeolina Wisner and tbe estate of her husband not devised to her, a debt which she could compel the latter to discharge. It is very clear that Mrs. Angeolina Wisner accepted the grant from her husband upon the terms upon which it was made, and thereby became the owner of so much of the equity of redemption as the deed assumed to convey. While the husband retained a life estate, the wife obtained by the conveyance a vested remainder in fee, subject to the mortgage, and it is manifest that the same event which gave the will effect, terminated the precedent life estate, reduced the estate conveyed by the deed into possession, and left nothing in the homestead property for the will to operate upon. There are some reasons for contending that during the existence of the precedent estate which the mortgagor retained, when he conveyed the remainder to his wife subject to the mortgage, the owner of the remainder could not compel the owner of the life estate to pay the mortgage debt or any part oí it, but a decision of this ease does not require us to determine that question. The extinction of the life estate, which left the whole estate in the homestead in Mrs. Wisner under the grant from her husband, precluded the raising of any question between the two estates as to marshaling the mortgage debt. .Upon the termination of the precedent estate, the whole mortgage debt rested absolutely upon the entire estate in the homestead, as that estate was held by Mrs. Wisner as grantee expressly subject to that debt. Her position therefore on the death of her husband was that of purchaser of the entire homestead property subject to the mortgage, and all the payments made by her were subsequent to the extinction of the life estate, and were made in exoneration of the property from a burden to which the title she took, and as she accepted and held it; was expressly subject. When a mortgagor conveys the whole equity of redemption [451] expressly subject to tbe mortgage, the mortgaged premises are the primary fund for the payment of the mortgage debt, as between mortgagor and vendee, and if the latter pay the mortgage he cannot call upon the former for reimbursement. — Mason v. Payne, Walker’s Ch. 459; Baker v. Terrel, 8 Minn. 195. — This principle applies forcibly to the present ease. The rights of Mrs. Wisner as against the estate of her husband are certainly no stronger than those of the vendee against the mortgagor. There is another-circumstance not undeserving of notice, although we do not rest our judgment in any degree upon it. In administration cases, the general principle of marshaling which saves the whole or a part of the realty from the burden of the testator’s debts is not founded in any preference of one portion of the real estate over another, but proceeds upon the idea that the personal estate is the primary fund for the payment of those debts for which the testator was personally liable unless, by express words, or otherwise, a different intent is plainly apparent. Now the record before us not only fails to disclose the existence of any personal estate which could be subjected to the payment of the debt in question, but contains facts having some tendency to show that there was none, while by the will it appears that aside from the homestead the testator devised all his real estate after payment of his debts to his children. If it be true that there was no personal estate, the burden of the mortgage debt could not be averted from the homestead without discriminating between the real estate conveyed to the wife, and that devised to the children, in order to impose a burden upon the latter which orignally devolved upon the former. It is quite certain that a course of that kind could not be based upon the general doctrine of marshaling aP between real and personal estate, and if allowable in any case it could be so only upon reasons which are totally wanting here. The order of the Circuit Court must be affirmed with costs. The other Justices concurred.