New York County NyArchives Court.....Babcock, Samuel, Matter Of, Executor Of Christian Detmold 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.


In the Matter of the Judicial Settlement of the Accounts of SAMUEL D. BABCOCK, 
GEORGE F. De FOREST and DANIEL LORD, Executors of CHRISTIAN E. DETMOLD.

Duty of executors to pay taxes, under an assessment levied upon the testator's 
real estate and made during his life, from principal.

Christian E. Detmold died in the city of New York on July 2, 1887, leaving a 
will which was shortly thereafter admitted to probate. By this will the 
testator, after making some bequests, devised, subject to an annuity to his 
wife, all his estate to two daughters, who were infants, for life, with the 
remainder to their issue.

On June 29, 1887, three days prior to the testator's death, the commissioners of 
taxes and assessment certified the assessment-rolls of the real and personal 
estate in the city of New York for the year 1887, and delivered the same before 
the first Monday of July to the board of aldermen, on which rolls the premises, 
Nos. 557 and 559 Broadway, New York city, were assessed to the testator, as 
owner, at a valuation of $250,000; the amount of taxes imposed being the sum of 
$5,400.

On an appeal from an order of the Surrogate's Court of the county of New York, 
adjudging that such taxes were payable out of the income and not from the 
principal of the estate:

Held, that as the assessment-rolls had been completed and delivered prior to the 
death of the testator, there was a personal liability upon the part of the 
testator to pay the taxes because he was the owner of the property at the time 
the assessment-roll was made out.

That the amount of the taxes was a debt, and that the executors were bound to 
pay it out of his estate and could not charge it against any of the devisees.

Appeal from an order of a Surrogate's Court of the county of New York, entered 
in the office of the clerk of the surrogate on December 14, 1888, which directed 
the payment of the taxes for the year 1887 on certain real estate of the 
testator, Christian E. Detmold, out of the income and not out of the capital of 
the testator's estate.

Charles E. Miller, for the executors, appellants.

James W. Perry, special guardian for infant remaindermen, the respondents.

Van Brunt, P. J.:

The testator died in the city of New York on the 2d of July, 1887. His will was 
shortly thereafter admitted to probate and the executors duly qualified. By the 
provisions of his will, the decedent, after some bequests, devised, subject to 
an annuity to his wife, all his estate to his two daughters for life, with 
remainder to their issue. The remaindermen are infants and are represented by 
their special guardian appointed by the surrogate. The executors in the account 
of their proceedings charged the annual taxes for the year 1887 against the 
capital or corpus of the estate, and hence, in effect, against the parties in 
remainder. The special guardian objected to this charge on behalf of the 
remaindermen, claiming that the tax should be borne by the life tenants and paid 
out of the income. A statement of facts was agreed upon and a hearing before the 
surrogate had thereon. This statement shows that on the 29th of June, 1887, 
three days prior to testator's death, the commissioners of taxes and assessments 
certified the assessment-rolls of the real and personal estate of this city for 
the year 1887, and delivered the same before the first Monday of July to the 
board of aldermen. The premises Nos. 557 and 559 Broadway were assessed on such 
rolls to the testator, as owner, at a valuation of $250,000, of which premises 
he was, up to the time of his death, the actual owner. The amount of the tax for 
the year 1887 was imposed at the sum of $5,400. On the hearing before the 
surrogate the objection of the special guardian, that the charge by the 
executors of this annual tax to the capital of the estate was improper, was 
sustained. The surrogate held that the tax must be charged against the income 
and be borne by the tenants for life. An order was entered in accordance with 
such decision, and from such order this appeal is taken.

There is no question but that the annual charges and taxes imposed on property 
must always be borne by the life tenants upon the theory that each estate must 
bear its own burdens. But upon an examination of the facts in this case it 
appears that this rule is entirely inapplicable for the reason that the corpus 
of an estate must bear the burdens of its debts, and at the time of the 
testator's death he had become personally liable for the payment of this tax 
entirely independent of the question as to whether it was or was not a lien upon 
the real estate. And it is here that we think the learned surrogate has 
overlooked the fact that the liability of the testator to pay this tax does not 
depend upon any special statutory provision in respect to the payment of taxes 
levied against the estates of decedents, but rests upon the broad principle that 
the testator's estate is liable for the payment of his debts. Therefore, if this 
tax, at the time of his death, was a liability against him, his estate was bound 
to pay it, and it could not be charged against the life tenant. In fact, it 
appears that the testator did not die until half the year 1887 had passed. The 
tax was for the whole year, and there does not seem to be any justice in 
charging the life tenant with a tax for the whole when they get only the income 
for the half, unless we are required to do so on principles, the authority of 
which should not be interfered with. But it seems to us that the question is not 
open to discussion. In the case of Rundell v. Lakey (40 N. Y., 513), it was 
distinctly held that the owner was legally liable to pay a tax which was in 
precisely the same condition as the one at bar. In the case cited the action was 
brought to recover the amount of a certain tax assessed against the defendants, 
and paid by the plaintiff at the request of the defendants, under an agreement 
that they would refund the amount to him in case they "were legally liable to 
pay it." On September 1, 1860, the defendants sold and conveyed to the plaintiff 
by deed, with the usual covenants for peaceable and quiet possession, a farm in 
the town of Manchester, and the plaintiff took possession. The county and State 
taxes for that year had been assessed to the defendants. The assessment-rolls 
were completed before August first; the annual meeting of the supervisors was 
held in November, when the tax in question was extended upon the rolls, and 
became a lien upon the real estate. On the 14th of February, 1861, the plaintiff 
paid the tax upon the agreement stated, and it was held that the vendee could 
maintain an action against the vendors upon the agreement, and also that there 
was a personal liability of the defendants for the payment of the tax, and that 
after the completion and delivery of the assessment-roll, there was no power to 
alter or change it. This case established the personal liability of the 
defendants for the payment of the tax, because they were the owners of the 
property in question at the time the assessment-roll was made out. But it is 
claimed that this case is no authority in respect to the question in the case at 
bar, because the controversy was over the rights of vendors and vendees, while 
in the case under consideration as between life tenants and remaindermen, the 
rights of the respective parties are different.

Our attention is called to the case of Barlow v. St. Nicholas Bank (65 N. Y., 
399), where it was held that there was not a breach of the covenant against 
incumbrances unless the tax had been confirmed so as to be a lien upon the land 
prior to the execution of the deed; and that case was distinguished from the 
case of Rundell v. Lakey, in that the only point involved and decided was as to 
there being a breach of the covenant against incumbrances, whereas in the case 
of Rundell the question was whether the previous owner was legally liable to pay 
the tax. In the case at bar, the assessment-rolls had been completed and 
delivered prior to the death of the testator. There was, therefore, a personal 
liability upon the part of the testator to pay the tax, because he was the owner 
of the property at the time the assessment-roll was made out; and it being a 
debt, the executors were bound to pay it out of his estate, and could not charge 
it against any of the devisees, the distinction between the time at which the 
personal liability to pay the tax accrues and the time at which such tax becomes 
a lien upon the lands being very apparent.

We think, therefore, that the learned surrogate erred in charging this tax 
against the life tenant, but that the executors should have paid the tax, it 
being a debt for which the testator had become personally liable during his 
lifetime.

The order should be reversed, with ten dollars costs and disbursements, and the 
case remitted to the surrogate for further action.

Brady and Daniels, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and the case remitted 
to the surrogate for further action. 

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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