In re the Judicial Settlement of the Accounts of Esmond

Majority

p. 621

In the Matter of the Judicial Settlement of the Accounts of Darwin W. Esmond and J. Bradley Scott, as Trustees of the Estate of Alfred Bridgeman, Deceased, Respondents. Walter A. Bridgeman, Appellant; Catharine H. Muir and Others, Respondents.

Second Department,

June 23, 1911.

Headnote

Will — construction.,

• Where a will bequeaths to testator’s son an indebtedness due from him to the testator, and directs that such debt be deducted from the son’s share of the estate, and the amount due and owing from the son be considered as a part of the estate, and the bequest of such indebtedness to him be charged as a payment on account of his share of the estate, and then directs, that the estate be equally divided between the son and two daughters, the son’s heirs are entitled to one-third of the estate after , adding thereto them father’s debt, less the amount of such indebtedness. JENKS, P. J., dissented.

Appeal by Walter A. Bridgeman - from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on-the 24th day of January, 1911, judicially settling the accounts of the executors and trustees under the will of Alfred Bridgeman, deceased.

F. W. Clifford, for the appellant.

Albert H. F. Seeger 'and William Vanamee, for the respondents.

Alfred Bridgeman, a resident of Newburgh, N. Y., died, leaving a last will and testament, which was duly admitted to probate on the 20th day of June, 1903, and the appeal now before this court is from a decree of the surrogate of Orange county judicially settling the accounts of Darwin W. Esmond and J. Bradley Scott, executors'and trustees under said last will. The will is clear and unambiguous; it is not open to any reasonable question of intention, and yet we are asked to overrule the learned surrogate, who has decreed that the obvious language of the testator is to be given its full effect. The testator had three children, one son and two daughters. The son appears to have had advances aggregating about $37,000. The will clearly provides that this amount shall be added to the estate, and that it shall then be divided into three equal parts, after the payment of debts, etc., and each of these parts aré disposed of to the three children. Testator’s son is dead, and the appellant is a son. of the testator’s son, and he now claims that he is entitled to one-third of' the estate, without the repayment of $37,000 which had been advanced to his father. Aside from the unfairness of the proposition, the language of the will is so clearly against the construction contended for that it would be a waste of time to discuss the question.

The decree of the surrogate should be affirmed, with costs. .

Hirsci-iberg, Burr and Bich, JJ., concurred; Jenks, P. J., dissented.

Decree of the Surrogate’s Court of Orange county affirmed, with costs. ■