In re the Judicial Settlement of the Accounts of Robert

The problem to be solved on this appeal is the meaning and intent of a single provision in the will of the testator. By itself it presents no difficulty and is not at all ambiguous, but read, as it must be, in connection with the entries standing upon the books of the testator at the date of his death, it invites a scrutiny which has led to different and contradictory constructions. The provision reads thus : “All moneys or indebtedness which shall appear upon any inven

If we pause for a moment to scan this language and gather the testator’s meaning from his words ¿lone, it is impossible not to see that he refers to existing debts due and payable to him, some of which are secured by collateral liabilities and some of which may not be, but' all of which stand charged against the debtors as outstanding and unsettled accounts and are capable of being released and discharged by his executors. The description plainly contemplates cases of actual indebtedness which might have been enforced by the testator in his lifetime, and which his books show were not so enforced, but remain unsettled and outstanding at his death. The use of the word “ moneys ” preceding the words “ or indebtedness ” does not throw a doubt upon this interpretation, for they are included in the phrase “such indebtedness” when the discharge is referred to, and must be charged as due to the testator, and as an outstanding and unsettled account, and constituting a liability which admitted of a release.

That this interpretation is, upon the face of the provision, the natural and obvious meaning of the testator is quite evident from the impression which it left upon our minds when other questions arising out of this will were before us for determination. (R obert v. Corning, 89 N. Y. 241 .) I do not think we then settled the question now raised, for the testator’s words were not at that túne confronted with his books of account or the entries upon them, nor was accurate attention challenged or analysis demanded in view of those entries; but the case in

But the provision in the will continued thus: “ And my executors are hereby directed to deduct the amount of such indebtedness from such respective share or portion, but-no interest is to be charged upon or added to any such indebtedness, except in case a bond, note or other obligation, securing such indebtedness, be found among my assets, upon which said bond, note or obligation interest has been paid or charged, in which case the said indebtedness shall continue to be charged with interest.” In this clause we find an added incident of the indebtedness before referred to. It is such as is interest bearing, either by its own terms or by operation of law consequent upon its being due and payable, and the object of the provision is to interfere with and modify the legal rules which would attach interest to the debt due or to become due. It means that interest is not to attach to the debt, except where a note or obligation exists, upon which interest has been paid or charged. Here again the character of the indebtedness

The will then adds a further provision to avoid a possible mistake or misapprehension, and one upon which the respondents very much rely. That clause reads: “Any items or charges which may appear in any account of my private, personal or family expenses, shall not be included or charged as such indebtedness. hTor shall any moneys which shall appear in my books charged to either of my said children to a furniture or allowance account be debited to such child on the settlement of my estate, but the same is considered as a gift made by me to such child in my lifetime.” The distinction here made impresses my mind as one of the most decisive character. It is between a debt and a gift; a debt due and payable, and a gift not payable at all; a claim capable of collection and enforcement, and a donation executed and ended; a debt to be deducted, and a gift not to be deducted. The clause indicates a recollection in the mind of the testator that there stood upon his books charges in his private account or against his children, which, on their face, would appear to be debts, and the true character of which, as gifts, the books would not disclose ; and so, under his will, his intention would be thwarted, and, what was really a gift and not a debt, would stand as a debt for want of an explanation in or a disclosure of the truth by the books themselves. To guard against that error he puts the explanation, which the books do not contain, in the will itself, and so substantially declares that entries are upon his books which import a debt from the form in which they are made, but which, in truth, are not a debt but a gift, and were so intended, and which, therefore, should not be included -in the deductions from shares or portions. So that in every possible way, by direct expression and indirect description, by

The testator executed the will in January, 1878, and died in the succeeding October. Tie left fotir children, Christopher, whose account as executor is here involved, Frederick, Howell, and Jane, his only daughter, and married to Ephraim L. Corning. The evidence indicates that a prior will was made, about a year and a half before the one probated, the contents of which we do not accurately know, except that the sixth clause, now under consideration, seems to have been identical in both instruments. The witness also thought that in the earlier will the estate was divided into fiftieths, and he had an impression that their distribution was the same as m the final will, although he ‘felt obliged to say, “I do not know.” So that it may be possible to assume that in the early part of 1876, a will of the testator was in existence substantially like the one probated in the material respects with which we are concerned; but the ledger account with Mrs. Corning ends January 1,1871, and that of Frederick, January 1, 1876, and those accounts began and ended when no will was in existence at all, or if by possibility there was one, we know nothing of its contents, and have no proof of its execution, and the accounts were begun and continued in contemplation of a possible death intestate.

It is not easy to mistake the meaning of these entries. They import, in each case, an advancement, to be charged and counted in case of intestacy, in order to produce equality of distribution. They import gifts executed, and intended as such, and not at all debts or liabilities in any manner due or payable to the testator or his estate. The money of Frederick is specifically described as. an advancement; the house and lot to Mrs. Corning, as given to her for her separate property. Eeither was to be paid back or restored; both were to be kept and retained. FTo element of debt or liability attached to either, and each was to be charged only as an advancement, and in accordance with the truth, and for the purpose of distribution in the possible emergency of an intestacy. For, while Mr. Robert may, even at that early date, have contemplated the making of a will at some time in the future, yet that is not certain, and at all events he knew that he had made none; he knew that death might come at any moment and produce intestacy, and he, who soberly declared that he never postponed a duty which should be done at once, guarded against the injustice and inequality which might follow intestacy, by recording his gifts as advancements, charging them to the son and daughter as such, and taking them out of the category of debts by stamping them as gifts, and declaring that they should be counted only for

These advancements he charged, as he said he should, in his books and upon his accounts to Frederick and Jane, respectively. Those charges in no manner altered the inherent character of the gifts or changed them into a debt. Down to the close of the accounts, and in every repetition of the items, they were the original gifts, charged as such, and recording the true transaction and not a false one of a debt. The process of bookkeeping should not mislead us. The ledger entries and form of the inventories might import, if standing alone, an indebtedness of Mrs. Corning and Frederick, or something which the testator regarded. as such, but the proof dissipates any such danger of mistake. One of the bookkeepers carefully explains that the character and meaning of the charge must all the time be referred back to the original journal entry from which it passed into the accounts, and once drawn into the system must continually reappear, but will never acquire- any new meaning or have any changed effect. Gifts they were as entered upon the journal; gifts they remained when transferred to the ledger; and gifts still they were considered and regarded when they took their place upon the inventories, for there they were classified as “unavailable” assets. If ever they were debts due from the children, or would be so due after his decease, they were perfectly good and as available as any actual assets upon his list. The debts which some of his children did, in fact, owe him he did not hesitate to class among his available assets, but the items of advancement were classed as unavailable because they were merely constructive assets to be counted as such solely for purposes of distribution in the emergency of his dying intestate. In effect he so declares. In the inventory of December, 1814, after ascertaining the market-value of his available assets, he adds the three advancements to Frederick, Howell and Mrs. Corning under the phrase “ amount due from,” and says

But after all these entries were made, and while they stood upon his books he made and executed his will. At that moment all questions of advancement disappeared, and the entries framed for the emergency of intestacy ceased to be material, since not the law but the testator himself was about to dictate the ultimate division of his estate, and do for himself that which seemed to him just. Treating Robert College as one of his children, he divided his estate into fiftieths. He gave to his son Christopher twelve parts, to Frederick eleven, to Howell twelve, to Mrs. Corning five and to Robert College ten. Here, on the face of it, is a singular inequality, which must have had gome cause and some explanation. For sixteen years the testator had contemplated an equality of division among his children, and carefully kept his books and accounts so as to effect that equality in spite of his varying gifts to three out of the four. If he took those gifts into account, as we are bound to suppose that he did, substantial equality was preserved; for then it will appear that he took five parts from Mrs. Corning, whose advance of $50,000 had been swollen by the sale of her house to $70,000, because, of that advance, and gave one part to Frederick, whose advance was less, and the remaining four to Christopher and Howell. If that was not the explanation, what was it % Mrs. Corning was his only daughter. He bought the house which he gave to her, and which adjoined his own, to keep her near to him. When she went abroad he expressed his disappointment, but soon followed her across the ocean, and traveled with her on the continent, and later, repeating his voyage, joined her in Paris,

. Let us recur again to the language of the testator’s will. When it was drawn there were three classes of charges against his children standing upon his books, of the form and foundation of which he had a perfect knowledge. First. There were debts due and payable to him as creditor from children who were his debtors. Frederick owed him for a loan of $30,000, which, with interest and further sums lent, amounted in December of 1874 to a little over $38,000; an indebtedness which the son does not at all dispute, or display any reluctance to pay. Ohristopher stands charged with more than $40,000 ; Mrs. Corning with a varying balance on her special account, and Robert College with a small amount. Second. There were the gifts to three of the children, described in the accounts as gifts and in the inventories as unavailable assets entered as part of the estate for purposes of distribution before any will was made. And, tim'd, there were moneys and property with which the children stood charged in form as debtors, but which, in reality, were gifts, though without adequate explanation in the books showing them to be such. To the first class the language of the sixth clause concededly applies and is satisfied by that application. To the second class it does not apply at all, and was not intended to apply. To the third class the explanation withheld in the books was given in the will, and that fact answers the inquiry of the respondent why the testator in the preparation of his will should have been careful to describe as gifts sums charged for furniture and for allowances but should omit such explanation as to the larger advances. The latter needed no explanation in the will, since .they were fully explained in the books. The former were not explained in the books, and so required explanation in the will.

The executor deemed it his duty to deduct from Frederick’s

Two things, however, are said in answer to this view of the case, which seem to require more deliberate consideration. While the accounts, as such, ended before the present will, or the one which preceded it, were made, and so were all made in contemplation of a possible intestacy, the inventories continue down to a later period, and one of them was made in December, 1877, shortly before the last will was executed, and in that, under the head of “ unavailable property,” are

It would not have been strange if, by reason of the manner in which the inventories were made, and of the exigencies of an unyielding system of bookkeeping, it had happened that the later inventories followed the form of the earlier ones and repeated entries which had become needless; for each new inventory was naturally modeled by the bookkeeper upon that which preceded it, and would be likely to sweep over all the entries in the books. But this testator was a very careful and prudent man, and while his bookkeeper, in framing the inventories of 1876 and 1877, followed the form of those previously made, they disclose a marked and significant variation from those of 1874 and 1875. In those the unavailable assets were first deducted and then to the balance was added the advancements to Mrs. Corning and Frederick, and the consequent total described as the sum for distribution. This process clearly indicated that the two gifts were to form part of the estate for purposes of distribution. But this was before either of the wills were made or contemplated; and in the following inventories of 1876 and 1877 the “unavailable” assets are again deducted but left deducted. The gifts are no longer added to the sum total of the estate, for the purpose of their addition had ended. They are taken out and left out, and not even added as constructive assets, or stated to have formed part of the estate as aggregated for distribution. On the contrary, they are dismissed from the assets as utterly as if they had been bad debts or worthless property; and so dismissed for the first time at just about the date when, as nearly as we can judge, the earliest will was drawn. It was as if the testator had said in so many words — hitherto, while I had no will, I added the gifts made to Frederick and Jane to my assets for purposes of distribution and to preserve equality; but now, having made a will and dictated the distribution, I deduct .

But it is further asked why the sixth clause should have been inserted in the will at all if it related only to debts. The argument is that debts would have been assets and formed part of the estate for purposes of distribution without any provision to that effect in the will, and so the sixth clause must have had a different purpose. I think the answer is that it did have a further purpose, and that was to limit the right of the estate only to such debts of the children as the testator had not forgiven, and to exclude such, as he did not choose to regard as debts, although they might prove to be legally of that character. And so the provision is, not that all debts of the children should be deducted, but such debts as his books showed he recognized to be debts and which stood thereon as due to him in the form of an open and unsettled account. The sixth clause, therefore, was not unnecessary or superfluous upon the construction which I think is the correct one.

Much might be added as to the consequences of a contrary interpretation; and as to other provisions of the will indirectly sustaining the view now presented, but quite enough has been written to show the grounds upon which I dissent from the conclusion of the courts below.

The judgment of the surrogate and the General Term should be reversed, and the case remitted to the surrogate for dis

All concur, except Huger, Ch. J., and Daneorth, J*, dissenting, and Gray, J., taking no part.

Judgment accordingly.