(8 Misc. Rep. 102.)

#### In re KENE’S ESTATE.

(Surrogate’s Court, Westchester County.

April, 1894.)

Transfer Tax—Real Estate Subject to Mortgage.

Under 1 Rev. St. p.' 749, § 4, providing that an heir or devisee shall, out of his own property, satisfy any mortgage to which the land descended or devised is subject, unless the will directs otherwise, the personal estate of a testator who devised land subject to mortgage is not liable for the mortgage debt, to the exoneration of the land, unless the will so provides, and the amount of the mortgage will therefore be deducted from the value of the land in assessing the transfer tax.

Appeal from order of appraiser.

Proceeding to appraise certain real estate devised by John F. Kene to L. F. Hopkins for assessment under the collateral inheri*1079tance tax law. The appraiser fixed the value of the premises at $1,509.43, and the assessment was made accordingly. Devisee objected to the assessment, on the ground that the premises were subject to a mortgage for $1,100, and from the decree of assessment she appeals.

Reversed.

C. E. Kene, for appellant.

Edward Hassett, for respondent.

COFFIN, S.

It is claimed by the counsel for the respondent that the bond accompanying the mortgage was an obligation of the deceased which his executors should pay, they having sufficient funds of the estate for that purpose. If this view were correct, the mortgage would be satisfied out of the personal estate, and the devisee of the house and lot would take it free therefrom, and so be liable to the payment of the tax. In this he seems to be in error. Such was the rule in England, but it was changed in this state as early as 1786, and is continued to the present day. By section 4, p. 749,1 Rev. St., now in force, it is provided that “whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator of his ancestor, unless there be express direction in the will of such testator that such mortgage be otherwise paid.” See revisers’ note to the section. The will gave no direction for the payment of the mortgage. The word “ancestor,” in Termes De La Ley, is said, in a forensic sense, to be more properly applied to the possessor of an estate than to an ancestor of a family; and in this sense it is frequently, and indeed most generally, employed in books which treat of descents of real estate, and in statutes relating to that subject. Burrill, in his Law Dictionary, defined it to be “one who has gone before or preceded in the seisin or possession of real estate.” Here1 the devisee takes it cum onere. Taylor v. Wendel, 4 Bradf. Sur. 324; 4 Kent, Comm. 420. In a proceeding in surrogates’ courts to sell real estate for the payment of the debts of a decedent, on which there is a. mortgage, the bond which usually accompanies it is never treated as a debt to be proven. As the value of the equity in the premises is found to be less than $500, it is exempt from taxation, and the decree fixing the tax is therefore reversed, with costs. Decree reversed, with costs.