In re the Estate of Lambie

McGrath, J. A special administrator has been appointed of the estate of Anne Lambie, deceased. He found no personal estate, and but one parcel of real estate, valued at $60,000, which was incumbered by two mortgages, — the first of $12,000, and the second of $5,000. The second had been foreclosed by advertisement, the sale having been made May 11, 1891. The equity of redemption would expire May 11, 1892. This mortgage was not given by decedent, and was not therefore a personal debt owed by her. In March, 1892, the special administrator petitioned the probate court for license to mortgage the real estate to pay said mortgage and protect the estate, and the probate court granted the authority. The sole question is, therefore, whether the mortgage debt is a “debt against the estate,” under section 6105, How. Stat., as amended by Act No. 67, Laws of 1889. It is insisted that a mortgage is simply a security, — a lien upon the land. In other words, it is not an absolute conveyance. But it is, nevertheless, security for a debt, —a lien securing an indebtedness. The property is charged with the payment of the debt. A mortgage has been defined as a debt by specialty. A debt is defined as any claim for money, — that which one is bound to pay. Coke says that “ debitum” signifies not only a debt for which an action of debt lies, but generally any duty to be yielded or paid. In Elwood v. Deifendorf, 5 Barb. 398, a testator charged [492] his debts upon certain lands devised, and it was held that the charge included a contingent liability which the testator was equitably bound to pay. In Lockhart v. Van Alstyne, 31 Mich. 76, a debt is defined to be that which one person is bound to pay another, either presently or at some future period; something which may be the subject of suit as a debt. In Allen v. Dickson, Minor (Ala.), 120, a debt is said to be a legal liability to pay a specific sum of money. There is no question here but that this estate, consisting only of this one parcel of land, which has been pledged to pay this specific sum, is legally liable to pay this charge upon it, and it can make no difference that decedent was not personally liable, but took this property subject to the pledge. In Re Marden’s Estate, Myr. Prob. 184, deceased was the owner of real estate, her separate property. To secure the payment of her husband's note she joined her husband in a mortgage of her separate real estate. The executor asked the court for an order of sale of the mortgaged property, and that the proceeds, as far as required, be applied to the payment of the debt. The application was resisted on the ground that the debt was not a “debt outstanding against the decedent,'' under the code. The court granted the license, holding that the words “against the decedent” were the same as “against the property of the decedent.” The court say: “ If it is not a debt outstanding against the decedent, the executor could not pay it, even if he had plenty of other resources.” In the present case the language of the statute is “ debts against the estate.” Is not this mortgage debt one against the estate, — against the property of the estate? Is not the estate — the property of the estate — charged with its payment? Is it not legally liable for its payment? The word [493] “ debts" in the statute should be given its ordinary signification, rather than • a technical construction which would be contrary to the practical construction which has been given it up to the present time. The judgment is affirmed, with costs. Let it be certified to the probate court accordingly. The other Justices concurred.