[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 322
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 323 There is no doubt that it is the duty of an executor, in the ordinary course of administration, to pay taxes assessed against the lands of his testator prior to his death, before paying the other debts of the decedent, except debts entitled to a preference under the laws of the United States. (2 R.S. 87, § 27.) The taxes in question in this case were not paid by the executor, but were paid out of the proceeds of the sale of the lands of the testator, pursuant to the judgments in the foreclosure action and in the action for dower, in suits commenced after his death. The direction in the judgments, that the taxes should be paid out of the proceeds of the sales, was in accordance with law. (Code, § 1676.) The plaintiff and the executor were made parties *Page 324 defendant in both actions. This action is, in substance, an action to compel the executor to restore to the trust fund, out of the personal property which came to him as executor, an amount equal to the taxes paid out of the proceeds of the sale of the lands under the judgments mentioned. The personal estate of the testator amounted to more than the taxes. It has been adjudged in a prior action that the trust created by the will of the testator in his lands was valid to support the equitable life estate in the income during the lives of Thomas and Benjamin Oliphant, but that the ulterior limitation was void, and that the lands descended to the plaintiff as heir-at-law of the testator, on his death, subject to the estate in the trustee for the two lives mentioned. If there was nothing else in the case, it would seem that the plaintiff would be entitled to have the sum taken from the land to pay taxes restored to the trust fund. The proceeds from the sale of the land are to be treated as land, as between the heir-at-law and the next of kin or legatees of the testator. But the answer alleges, and the demurrer concedes, that the admitted claims of unpreferred creditors of the estate largely exceed the personal assets of the testator. If, therefore, the executor is required to pay over to himself, as trustee, out of the personal assets, the amount taken from the real estate to pay taxes, the replenished fund into which the real estate has been converted would be liable to be reappropriated, on the application of creditors, to the payment of the general debts of the testator. The statute prescribes special proceedings for the sale of the real estate of a decedent for the payment of debts, and an executor, as such only, and by virtue of his general powers, is not vested with administrative authority to sell lands for this purpose. (Smith v. Cornell, 111 N.Y. 554.) But without any action on his part the taxes have been paid out of land embraced in the trust. The question is, ought the amount paid to be restored for the benefit of the beneficiaries in the trust and the remainderman? Upon the facts admitted we think the relief was properly denied. This result prevents *Page 325 circuity of action and subjects the trust fund to no charge except that to which in some form it would sooner or later be liable. The possibility that, by failure of creditors to pursue their legal remedies, the fund would be exonerated is too remote to be considered, and, moreover, it is a consideration which does not commend itself to a court of equity. The conclusion reached does not conflict with Smith v. Cornell (supra), which was plainly well decided. That case involved the simple question whether a purchase by the heir-at-law of lands of the testator on a sale under a decree in an action for dower brought by the testator's widow where the sale and the conveyance were made subject to unpaid taxes assessed during the testator's lifetime precluded the heir-at-law, to whom the lands descended subject to a trust for lives from calling upon the executor to pay the taxes out of the personal estate of the testator, no special circumstances being shown to take the case out of the general rule.
We think the judgment in the present case is right and it should, therefore, be affirmed.
All concur.
Judgment affirmed.