In re Turfler's Estate

The testatrix, Elizabeth Turfler, died February 9, 1886, leaving a last will and testament, bearing date February 16, 1882, and a codicil thereto, bearing date October 28, 1885, and appointing her son Jacob C. Turfler the sole executor thereof. By her said will the said testatrix directed her funeral expenses and

“But, If my said daughter Amy shall so purchase the said house and lot, she shall pay therefor the whole of said sum of five thousand dollars, and shall have no share with my other children in the purchase price thereof, as hereinafter provided concerning any other property.”

The testatrix then makes the following disposition of her property:

“All the rest, residue, and remainder of my estate, whether real or personal, * * * I give, devise, and bequeath to my said executor in trust, to sell the same * * * at public or private sale, and at such times and in such manner as he may deem best, but all (except the St. Mark’s avenue house and lot above) within one year after my death, and the proceeds of such sales * * * to divide equally among my five children, namely, the said Amy Williams, the said Cornelia R. Kroehl, George C. Turfler, Jacob 0. Turfler, and Francis A. Turfler.”

Here then follows a bequest and devise in case of the death of either child, and the testatrix then adds:

“And my said executor shall make division of such proceeds among my said children or children and grandchildren as often as such proceeds of sales or accumulations of moneys in his hands shall amount to $2,500.”

The instrument then terminates with the appointment of the executor. By the codicil the testatrix makes only the following provision:

“It being my intention to make a gift to my daughter Amy Williams of the property mentioned in the fourth paragraph of my foregoing will, and the expenses of that property in repairs, taxes, etc., since the execution of my said will, having been paid by me, I do hereby revoke and declare null and void the said fourth paragraph of my said will.”

After the execution of her will, the testatrix made advances or loans, from time to time, to'each of her said children, and on December 10, 1885, took from each of her said children George O. Turfler, Jacob 0. Turfler, Francis A. Turfler, and Cornelia E. Kroehl a receipt or acknowledgment in writing, executed by each respectively and separately, and reciting in each substantially that—

“My said mother having determined to make gifts or advances to all of her children to the amount of $5,000 each, * * * so that the said payments and loans may be treated as a gift or advance, this is to acknowledge than I have received from her the said sum of $5,000 as such gift or advance.”

The acknowledgment of George C. Turfler, howevey, recites that he has received only $2,100, “on account and as part of such gift or advance of $5,000,” and that of Francis A. Turfler that he has received “from my said mother the said aggregate of $2,420 on account, and as part, of said sum of $5,000 so advanced, and to be advanced, to

“Received, December 10, 3885, of Elizabeth Turfler, a deed from her to me of the property known as number 583 St. Mark’s avenue, in the city of Brooklyn, my mother, the said Elizabeth Turfler, having made gifts or advances to several of her children, and having determined to make such gifts or advances to all her children, equally to each child, the sum or equivalent of five thousand dollars, this receipt is.an acknowledgment that I have received in the said property above mentioned the whole of such sum of five thousand dollars as such an advance to me.”

George C. Turfler and Francis A. Turfler received no further payments or advances during the lifetime of the testatrix, except one of $500 to George, on January 11, 1886, “on further account of the above-mentioned advance of $5,000,” making his aggregate payments $2,600. After her death, and after the probate of her said will and codicil and the granting of letters testamentary thereof to the said executor, and about March 4, 1886, all of the children, or their representatives held a conference as to the estate matters, and as a part thereof the matter of the intended gifts or advances of the $5,000 to each child by the testatrix came under consideration, and the fact that neither Francis nor George had received their full $5,000, Francis having received but the $2,420, and George the $2,600, was acknowledged by all. The matter of completing these gifts or advances to them was discussed, and it was agreed by all, including this contestant, that these two brothers should receive an amount of money out of the estate which, with the amount which each had already received, would make the sum of the advances to each $5,000. At least two subsequent meetings of said parties were had, at which the contestant was present, and the matter of the payment to George and Francis of their respective balances of the sum of $5,000 came under consideration. These latter meetings were held at the office of the counsel for the executor in New York city, about the respective dates of March 10 and April 15,1886. About said 10th day of March the executor paid to George and Francis the respective sums of $2,400 and $2,580, as their respective balances of $5,000, and took their receipts therefor. These items appear as credits in Schedule E of the accounts. About the same time the counsel for the executor prepared a writing reciting the facts, with reference to these gifts or advances of the testatrix, and that it was her intention, before her death, to make to each an advance or gift to the amount of $5,000; that George and Francis had only been paid the respective amounts of $2,600 and $2,420; that, although the will does not provide for payment to them of the remainder of such amount of $5,000 to each, yet it is declared to be just, and it is the desiré of the parties that such remainders be paid out of their mother’s estate before any division of the same; and that the executor has at their special request, and their promise of release to him, paid over the said remainders out of the moneys , of the estate to said George and Francis; and then follows a release and discharge of the executor, and acknowledgment of the said payments by him, and an agreement to, waive all objections to such payments upon the accounting of the executor. This writing is

The contestant now objects' to the allowance of these two payments of $2,400 and $2,580, respectively, to George and Francis as credits in the executor’s accounts, and contends that the same were wrongfully made and unauthorized. This presents the only question which is submitted to me for my consideration and determination. The counsel for the executor maintains that these payments were properly and legally made, and that the executor should be credited therefor, on these several' grounds: (1) That the same were properly made as advances, pursuant to the provisions of the statutes of distribution and descents; (2) that they were authoritatively made as advance's or payments, to carry out the intention of the testatrix to equalize the distribution of her property among all of her children; (3) that the payments were made with the consent of all the children, including Mrs. Williams; that she was present when the payments were made, or had knowledge or information that the same were being made, and made no objection thereto, and that because thereof she is now estopped from claiming that the same were illegally and improperly made. It is my opinion that these payments cannot- be sustained upon the first ground. The statutes of descents (1 Rev. St. p. 754, §§ 23-26) and of distributions (2 Rev. St. p. 96, §§ 75-77) as to advancements only relate to cases of intestacy. These statutes have thus been construed by the authorities. Thompson v. Carmichael, 3 Sandf. Ch. 127 , cited with approval in Clark v. Kingsley, 37 Hun, 247 ; Hays v. Hibbard, 3 Redf. Sur. 28; Redf. Pr. (3d Ed.) 583. My judgment is, however, that the payments are sustainable upon the second ground. The bequests to all of the other children of the testatrix were adeemed to the extent of $5,000 by the advances of the testatrix in her lifetime, and in the distribution of the estate the executor was authorized to pay to Francis and George these respective amounts in question, to equalize them with the advances to the other children, and then to equally distribute the balance. It is perfectly clear from the evidence that it was the express intention of the testatrix to make an equal division of her property among her five children. She

In Benjamin v. Dimmick, 4 Redf. Sur. 7, the learned surrogate says:

“There can be no doubt that a legacy from a parent to a child may be adeemed in whole or in part, and the rule thereof may be deduced from the elementary writers upon the subject, as follows: That where a parent bequeaths a legacy to a child, and afterwards, in his lifetime, gives a portion or makes a gift to, or a provision for, the same child, even without expressing it to be in lieu of the legacy, if the gift or provision be certain, and not merely contingent, if no other object be pointed out, and if it be ejusdem generis, then it will be deemed an ademption of the legacy in toto, if greater than or equal to, and pro tanto, if less than, the provision by the will. The provision by the will is presumed to be a portion, because it is a provision from a parent for his child, and the subsequent gift of a portion is presumed to be a satisfaction of such portion given by the will, either wholly or in part;” citing authorities.

Where a legatee, subsequent to the execution of the will, received from the testator property in lieu of the legacy, the legacy is satisfied. Snell v. Tuttle, 44 Hun, 324 -331. Camp v. Camp, 18 Hun, 217 , is not in conflict with this principle. In that case it appears that the advances were made prior to the making of the will. It is claimed that this principle of ademption is not applicable to a bequest of residue; but while the earlier authorities seem to have so indicated, yet the later ones hold the contrary. In Montefiore v. Guedalla, 1 De Gex, F. & J. 93, Lord Chancellor Campbell, writing the opinion, says, (at page 99:)

“It has been said that there cannot be an ademption where a testamentary gift is of the residue of the testator’s property. This position rests upon no principle, and, if strictly acted upon, would produce great injustice. The doctrine of ademption has been established for the purpose of carrying into effect the intention of fathers of families in providing for their children, and of preventing particular children from obtaining double portions, contrary to said intention. The only reason for the exception is that a residue is uncertain, and may be worthless. * * * But if a testator, after directing his executor to pay debts, funeral expenses, and legacies, goes on to say, ‘And whereas, I wish all the residue of my personal property to be equally divided among my three children, I direct that each of

them receive one third of the residue,’ and afterwards he advances $5,000 to a daughter on her marriage, or to a son to purchase a commission in the army, can there be any doubt that he meant this sum to be deducted from the one third of the residue coming to the daughter or the son?” '

. Speaking of the cases to the contrary, he says:

“The whole of that class of cases has been swept away by Thynne v. Glengall, 2 H. L. Cas. 131.” “Upon the whole, [Lord Campbell still writing,] I think the question whether a gift of residue does or does not operate as an ademption or satisfaction must depend upon the intention.”

The case of Eisner v. Koehler, 1 Dem. Sur. 277, was one of a bequest of the residuary estate, and the doctrine of advancements was applied.' In Hays v. Hibbard, 3 Redf. Sur. 28, the learned surrogate holds that the principle of ademption does not apply to residuary legacies. He cites Rop. Leg. 376, wherein he says:

“It is stated as a fourth exception to the general rule of presumptive advancement, where the bequest is uncertain in amount, that the devise of the residue, or of part of the residue, to a child, is not adeemed by a subsequent advancement upon the legatee’s marriage,” etc.

He also cites Williams, Ex’rs. These authorities I do not think sustain the general proposition. The authors cited were treating of 'the “presumption” of ademption where there is no intention of the testator expressed in the will or other written instrument. Such a case was Hays v. Hibbard, supra, and it may bé that, resting alone upon presumption, the learned surrogate was correct in the conclusion he reached as to that case, but evidently the authorities he cited do not sustain the general proposition that the principle of ademption does not apply to the residuary legacies. The language quoted by him from Eoper expressly shows that the author is speaking of “presumptive advancements.” 2 Williams, Ex’rs, 1443, cited, is to the same effect, and holds that this presumption may be rebutted or confirmed of a different intention of the testator. In speaking of the ademption of residuary legacies in 2 Williams, Ex’rs, 1442, the author says:

“It was formerly considered that where the bequest to the child is of a residue, or part of a residue, the subsequent advance cannot operate as an ademption, because such a gift cannot be considered as a legacy of a portion, which must mean a legacy of a definite sum; but a contrary doctrine is now established.”

In Hopwood v. Hopwood, 7 H. L. Cas. 728, it was declared that the presumption of law is against double portions, and that where a sum of money is given by the will of the parent to a particular child, and a like sum afterwards secured by a settlement on the marriage of that child, there is a presumption in favor of the ademption of the legacy; and see Leighton v. Leighton, L. R. 8 Eq. 458. The American courts fully recognize the presumption against double portions. 2 Redf. Wills, 447. It is always a question of the intention of the testator. In this case the question does not rest solely upon presumption. The intention of the testatrix is clearly and explicitly made to appear; she intended that an equal distribution of her estate should be made, having in consideration a gift or advance to each child of the sum of $5,000, in cash or other prop

“All the rest, residue, and remainder of my estate, whether real or personal, 8 * * I give, devise, and bequeath to my said executor, in trust to sell the same * * * within one year after my death, and the proceeds of such sales, after deducting all necessary and proper expenses of such sales, to.divide equally among my five children;” naming them.

Here was no devise of real estate to the children. It was to the executor, in trust to sell the same and distribute the proceeds. By equitable conversion the proceeds became personalty, and it was these proceeds that the testatrix gave to her children. But in either view it seems clear that this question of a devise of realty is not necessarily involved in the adjustment of the matters in controversy on this accounting, for it appears from the accounts that the executor has received of personal assets, concededly such, nearly $24,000, so that applying the rule of ademption and satisfaction to only a bequest of personalty, strictly such, the payments to Francis and George were properly made. I am therefore of the Opinion that these payments to the two sons Francis and George were lawfully made to them by the executor on account of their distributive shares, for the reasons and upon the grounds above stated.