Flanders v. Greely

10 A. 686, 64 N.H. 357

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1887
• Status: Published

Opinion

Allen, J.

The interest of Simon Grooly, the mortgagor and one of the children of Insley Greely, the testator in the homestead farm at the time the mortgage was made, was that of a residuary devisee in common with his brothers and sisters. That interest vested in the devisee on the testator’s death, subject to the payment of debts and legacies, the widow’s use of the property during widowhood, the conditional support of the daughter Cinda, and the privilege of a home to the three daughters if they should remain, unmarried. That interest, therefore, was one that might be conveyed and passed by the mortgage. Jones Mort., s. 136 ; 3 Wash. Real Prop. 88-90, 301, 302.

The claim of Sarah, one of the defendants, arose subsequent to the death of the testator, and cannot be made a debt against his estate to the payment of which Simon’s interest is subjected or postponed. The other children might join in the payment of the claim, and they are bound by their submission to arbitration and by the award of the arbitrators. The mortgage was made prior to the submission and award, and, in fact, prior to the existence of most of the claim, ahd the plaintiff was not a part}*- to the proceeding, and in no way recognized or consented to it, and his interest as mortgagee cannot be affected by it. The debts, legacies, rights of the widow and daughters, to which Simon’s interest was by the will subjected, are, so far as the case shows, satisfied. The debts and legacies are paid; the death of the widow and two of the daughters, and the marriage of Sarah, were events which terminated their respective interests in the land, upon Simon’s share of which no charge remains except the mortgage to the plaintiff, who is entitled to a decree of foreclosure of Simon’s interest in the homestead.

Case discharged.

Clark, J., did not sit: the others concurred.