In re Estate of Murray

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

The only question made by this record is as to the application by the Administrator of the proceeds of the sales of real estate, sold by the Administrator under order of Court, and bound by mortgage, as between the Administrator claiming to hold the money for general expenses of administration, or for the other creditors and the mortgagee. We think that the one hundred and eighty-sixth section of the'statute (Wood’s Dig. 410) settles the question : “ When any sale is made by an Executor, or Administrator, pursuant to the provisions of this chapter, of land subject to any mortgage or lien, which is a valid claim against the estate of the deceased, the purchase money shall be applied after paying the necessary expenses of the sale, first to the payment and satisfaction of the mortgage, and the residue in due course of administration.”

This provision is express, and is not controlled by the general provisions of the statute in reference to distribution of assets and payment of debts. This is a special provision for the particular class of cases—that of mortgagees whose claims the Administrator collects by this process of sale; and it is no contradiction that a different provision is made in reference to a different class of claims; that is, a provision for mortgages, not a lien on the particular land sold, etc. The justice of the rule is as plain as the language. The creditor merely gets the benefit of the «contract made with the deceased, and is under no obligation to pay any other expenses than those incurred in the enforcement of the mortgage security. The expenses are directed to be retained by the act.

Decree affirmed.