Estate of McDougald

SHAW, J.

This ease presents two appeals by Carrie B. McDougald from the order settling her second account as administratrix of the estate—one taken by her as administratrix, the 'other as the holder of a claim secured by mortgage.

The entire assets of the estate consist of the real estate covered by the mortgage held by Carrie B. McDougald, $6,822.95, received by her after her appointment, as rentals of said real estate, and five hundred dollars received on a life-insurance policy. I

1. The principal point urged by the administratrix in her representative capacity is the action of the court in rejecting an item of taxes. In her account she claimed credit for $2,129.67, paid as taxes on the real estate described in her mortgage. The court rejected this item, and charged the amount as a part of the balance bn hand out of which dividends were to be paid. We think this action of the court was correct. It appears that she did not list her mortgage interest for assessment, but allowed the land to be taxed in the same manner as if there was no mortgage thereon. As holder of the mortgage interest, it was her duty to list it for taxation, and the taxes consequently levied on that interest would be her individual debt, and not the debt of the estate. The debt being greater than the value of the land, there could have been no excess on which the estate would have been taxed. The mortgage debt would therefore have covered it all. She cannot be allowed to do indirectly what she could not do directly, especially when in her trust capacity as administratrix she was held to the utmost good faith in dealing with the estate. Equity will regard that done which ought to have been done, and the matter must be adjusted by requiring her to bear the.burden of the taxes which she should.have paid

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as fully as she would have borne it had she listed her mortgage interest for taxation as she ought.

In this connection, she offered to prove a parol agreement between the deceased and Parker, the original mortgagee, at the time of the execution of the mortgage, to the effect that, if. the deceased would each year pay the taxes on the entire estate in the property, including the interest of both mortgagor and mortgagee, the mortgagee would remit three tenths of the interest provided in the note, and would accept a payment of seven per cent as a full payment of the interest on the debt; that this arrangement was carried out during the lifetime of the deceased; that when she procured the mortgage to be assigned to her she immediately transferred it to the Stockton Savings Bank as collateral security for a debt she personally owed to the bank, and that thereafter she, as administratrix, and said bank had continued to act under the same arrangement in regard to taxes and interest. This was objected to on the ground that it was an oral agreement purporting to change the terms of the note and mortgage, and the objection was sustained. Doubtless, as an executory agreement to bind the parties in the future, and so far as it was unperformed, it was invalid. But it would have been valid if it had been in writing