Majority
Headnote
1. Wires—Construction—Legacy to Debtor—Set-Off against Legacy.The fourteenth clause of the testator’s will was evidently designed to characterize as a gift that which otherwise might be mistaken for an advancement. In employing the word “advancement,” it is evident that the testator did not employ it in its limited statutory meaning, because in that meaning it is applicable only to cases of intestacy, and to moneys advanced by a parent to a child in anticipation of such child’s future share of the parent’s estate. Code Civ. Proc. § 2733; Real Property Law (Laws 1896, c. 547) §§ 295, 296.
The word “advancement” is employed by courts of equity, in a wider sense, to denote money or property advanced as a satisfaction pro tanto of a general legacy given by a parent or other person standing in loco parentis to a child or grandchild. Matter of Weiss, 39 Misc. Rep. 71 , 78 N. Y. Supp. 877 ; Lawrence v. Lindsay, 68 N. Y. 108 -112.
There is no rule or principle of law, however, by which moneys advanced to collateral relatives could in any event be held to partake of the nature of advancements, or to be followed by the legal consequences which belong to them. It does not seem probable, therefore, that the testator had in his mind the money loaned to Mrs. Shippey, when he declared money or property his legatees might have received
On the 7th of November, 1902, the executors remitted to Mrs. Shippey a check for $697.50, which they stated was the balance of her legacy under Mr. Kilmer’s willj after deducting the transfer tax and the amount oí her note. She at first, through her counsel, objected to .receiving the check as the balance of her legacy, but she afterward sent the executors a receipt therefor, stating it to be “Balance of legacy less State Legacy Tax $142.50 and note and interest $2,160,” and at the same time requested them to return her the note, which they did accordingly. The executors claim that the acceptance of the. check, the signing of the receipt, and the delivery to Mrs. Shippey of her note constituted an accord and satisfaction, and for that reason she cannot maintain her claim. It is not necessary to pass upon the correctness of this position, having disposed of the question involved upon other grounds.
For the reason stated, it is my opinion that Mrs. Shippey’s claim cannot be maintained. The executors were justified in offsetting the amount of her note against the legacy, and the transaction resulted in the payment in full of the legacy given to Mrs. Shippey by the testator under his will. A decree should be entered accordingly.
Decreed accordingly.
Cases cited
- Lawrence v. Lindsay 68 N. Y. 108 p. 470
- Rogers v. Rogers 153 N. Y. 343 p. 471
- Van Alstyne v. Van Alstyne 28 N. Y. 375 p. 471
- Stagg v. Beekman 2 Edw. Ch. 89 p. 471