dissenting.
The estates of Robert G. Colquhoun and Elizabeth Colquhoun contest the status of a $16,000 mortgage, recorded in Robert’s name before his death, on property which the deceased spouses had owned as tenants by the entirety. The majority finds here “a classic example of a case in which competing legal principles may lead to different results.” After pondering the equities, the majority decides to split the difference, awarding Robert Colquhoun’s estate one-half of the mortgage amount, $8,000, plus interest due as of the date of his death. On first sight, such a resolution appears to be a fair compromise between competing interests. Closer examination reveals, however, that while this result may be a compromise, it is far from fair. Therefore, I dissent.
Elizabeth Colquhoun and her husband, Robert, owned a home in Basking Ridge as tenants by the entirety. Their son held a $16,000 mortgage on the property which he assigned to his father, individually, in June 1978. Because Robert Colquhoun *569predeceased his wife, Elizabeth Colquhoun’s estate now owns the entire Basking Ridge property, which its executor has contracted to sell for $89,500. These facts are sufficient to conclude that Elizabeth Colquhoun’s estate owes one-half of the payments due on the $16,000 mortgage up to the time of Robert Colquhoun’s death, and all of the payments due thereafter.
New Jersey has long taken the view that no debts accrue to the estate of the predeceasing spouse on property that the spouses had owned as tenants by the entirety. See Nobile v. Bartletta, 109 N.J.Eq. 119 (E. & A. 1931); In re Staiger, 104 N.J.Eq. 149 (E. & A. 1929) (where spouses were tenants by the entirety, wife is entitled to receive from predeceasing husband’s estate a pro rata contribution only for those mortgage payments which were due up to the time of his death). The rule is based on the principle that the surviving spouse who becomes sole owner of the property should shoulder the full burden of any subsequent obligations, at least where, as here, the value of the property exceeds the debt.
The majority recognizes that if Robert Colquhoun’s son had kept the mortgage instead of giving it to his father, his wife’s estate would have been liable for all payments on the full mortgage accruing after his death. The only difference here is that the son gave the mortgage to the father as a gift. He clearly intended the father alone to be the beneficiary of the gift. Moreover, the elder Colquhoun’s prompt recordation of the assignment showed his intent not to allow his wife to share in the gift. “An assignment of a mortgage to one of two tenants in common ... does not discharge it.” 9 Thompson on Real Property § 4798 at 593 (1958). Thus, Robert G. Colquhoun owned the entire mortgage at the time of his death, upon which it passed to his estate. Consequently, Elizabeth .Golquhoun’s estate now owes payments on a $16,000 mortgage. Yet, the majority concludes that her estate should pay only one-half of the mortgage amount, on the grounds that Robert G. Colquhoun *570never gave his wife the chance to purchase her fair share of the assigned mortgage.
I do not deny that a co-tenant who acquires an interest in jointly owned property is normally required to permit the other tenant to share in the benefit, provided the other co-tenant is willing to contribute her fair share of the costs or value within a reasonable time. Breitman v. Jaehnal, 99 N.J.Eq. 243, 245-46 (Ch.1926), aff’d, 100 N.J.Eq. 559 (E. & A. 1927). Nor do I deny that “[rjeasonable time is an elastic concept.” 4 Thompson on Real Property, § 1807, at 208 (1979). What I fail to see, however, is the justification for resurrecting this duty of co-tenants under the facts of this case. Why should the reasonable time for contribution be extended beyond the lives of the two cotenants here? Certainly, fairness does not compel such a result. Because of the fortuity that Elizabeth Colquhoun survived her husband, her estate now owns a home worth at least $89,500. The estate of Robert G. Colquhoun owns only a $16,000 mortgage on the property.
It may be true that the “goal of juridical effort is not logical synthesis but compromise.” B. Cardozo, The Paradoxes of Legal Science 4 (1928). However, the compromise constructed by the majority rests on a fantasy. Co-tenants do owe duties to each other, but both co-tenants here have died. Placing the entire encumbrance on the estate that inherits the property is by far the fairest result.
I would reinstate the trial court judgment holding Elizabeth Colquhoun’s estate liable for payments on the existing $16,000 mortgage. Under Nobile v. Bartletta, supra, her estate is entitled to exoneration from her husband’s estate of one-half of the mortgage payments owing up to the time of his death.
For remandment — Chief Justice WILENTZ and Justices SCHREIBER, HANDLER, POLLOCK and O’HERN — 5.
Dissenting — Justice PASHMAN — 1.