McLenahan v. McLenahan

The Chancellor.

Although the personal estate is the primary fund for the payment of the debts of a decedent, the rule is limited to debts created by him, or for which he has rendered himself personally liable, directly and primarily. Where lands subject to a mortgage debt, not created by the decedent, descend or are devised, the heir or devisee takes them eum onere, and is not entitled to have the debt paid out of the personal estate, unless the decedent has directly assumed the debt, intending to make it a charge on his personal estate, or shall have so directed expressly by his will. It is not enough that he has assumed to pay the debt, or has rendered himself liable to be called on directly by the creditor to pay it.

The authorities, ancient and modern, are uniform on these principles, although there is some difference as to what shall show the intention to assume the mortgage debt as a primary lien on the purchaser and his personal estate. The case of Belvidere v. Rockfort, decided in the house of lords, and reported in 6 Bro. P. C. 520, goes the furthest in favor of the heir. This case falls far short of that. In that, there was a covenant in the deed that the grantee would pay off the mortgage, “ out of the consideration money in this present deed expressed.” and even that case was doubted and disapproved by Lord Thurlow.

The authorities are collected in 2 Jarman on Wills, p. 546, *104 &c., and are thoroughly reviewed and discriminated by Chancellor Kent, in Cumberland v. Codrington, 3 Johns. C. R. 229, which the great learning and ability of that distinguished jurist, will always make a leading case on this subject.

The decisions in New Jersey, relied upon for the complainant, do not affect the application of the rule as established in England, in this case.

In many of the English cases referred to, in which the personalty was held not to be liable to the debt, in discharge of the land, there were, covenants to pay the debt, and the ancestor, or his personal representatives, could have been compelled to pay it. Shafto v. Shafto, 1 P. W. 664, note; Tankerville v. Fawcet, 2 Bro. Ch. Cas. 57; Tweddell v. Tweddell, Ibid. 101; Billinghurst v. Walker, Ibid. 604; Butler v. Butler, 5 Ves. 534.

The result at which Chancellor Kent arrives is this: <e There must be a direct communication and contract with the mortgagee, and even that is not enough, unless the dealing with the mortgagee be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real to the personal fund.” 3 Johns. C. R. 262.

There is, in this case, no contract with the mortgagee, and nothing to show an intention to shift the primaiy obligation.

The proposed amendment to the bill would not affect the result.

I am of opinion that the injunction should be dissolved, and the bill dismissed with costs.