In re Esmond — 130 N.Y.S. 302

Majority

p. 302

In re ESMOND et al.

(Supreme Court, Appellate Division, Second Department.

June 23, 1911.)

Headnote

Wilis (§ 759^[1] )—Constbuction—Advancements.

Testator, having advanced $37,000 to his son, since deceased, executed a will providing that such amount should be added to his estate, whicli should then be divided into three parts after the payment of debts, and each of such parts should be disposed of 'to his three children. Held, that a grandson, son of the child to whom the advancement was made, was only entitled to his father’s share, after deducting the amount of the advancement.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1961-1966; Dec. Dig. § 759.^[1] ]

Jenks, P. J., dissenting.

Appeal from Surrogate’s Court, Orange County.

Judicial settlement of the accounts of Darwin W. Esmond and another, as trustees of the estate of Alfred Bridgeman, deceased. From a surrogate’s decree settling the accounts,- objector appeals.

Affirmed.

Argued „ before JENKS, P. J., and HIRSCHBERG, BURR, WOODWARD, and RICH, JJ.

F. W. Clifford, for appellant.

Albert H. F. Seeger and William Vanamee, for 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

p. 303

into three equal parts, after the payment of debts, etc., and each of these parts are 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 the $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.

HIRSCHBERG, BURR, and RICH, JJ., concur. JENICS, P. J-, dissents.