Price v. Douglass ( 1889 )

Knowltost, J.

The question which arises in this case is, whether the testatrix intended that the loans advanced to her children Ellen R. Douglass and Jarvis W. Eobinson should be set off against the respective shares of the estate to be distributed to them and their children, or against the respective portions of those shares which would come to them alone. There is no single clause in the will which determines the question, and we must gather her intention from a consideration of all the provisions of the instrument.

Her household furniture, silver ware, books, and pictures she divided equally among all her children. She gave her wearing apparel, jewelry, and China ware to be divided equally among her three daughters. In the third clause she says that two of her children had obtained loans in anticipation of what they might afterwards receive in the distribution of her estate, and had given notes therefor, and intimates that further loans may be made and additional notes given, and directs that all such loans and notes be taken as a part of her estate to be divided, and closes by an order in these words: “That, in the division thereof, as hereinafter directed, such notes or loans be paid by a set-off betwixt the debt so due to my estate and the legacy given from my estate.” Then follows the provision for the division referred to, which, after excluding the articles of personal property first mentioned, orders all her estate, expressly including these notes and loans, to be divided into five equal shares. She then takes each share by itself, and, in a separate clause of the will for each, directs the manner in which it “ shall be distributed ” to some one of her five children and his or her children. Having thus treated each branch of her family with absolute equality, and having modified the shares of her children only by subtracting from each a greater or less sum to be given directly to their respective children, she states her manifest purpose in the tenth clause, by saying that she makes the division with equal love and affection towards all her children.

It is plain from the language of the fourth clause, that she intended that all the loans and notes should be reckoned as part of her estate, and that the shares should be ascertained on that basis. The third clause also shows the same intention. It is agreed that her son Jarvis owed her ten or twelve thousand dollars for such loans when the will was made, and, from her reference to the subject in the third clause, it is evident that she expected a material increase of the loans. Indeed, it is found as a fact, that he had been since the death of his father, and then was, dependent for the most part on assistance from her for the support of himself and his family. He died insolvent in the lifetime of the testatrix, and the amount of the loans advanced to him was then more than twenty-three thousand dollars. The words “legacy given from my estate,” in the third clause, could not have referred merely to the portion which. he would receive in the distribution, under the sixth clause, of the share set apart for his family; for her whole estate, including the loans, was only two hundred thousand dollars, and that portion could in no event exceed eight thousand dollars, while the amount to be collected from him by set-off was ten or twelve thousand dollars when the will was made, and was likely to he, as it afterwards was, largely increased. The language of the third clause requires the set-off “ betwixt the debt . . . and the legacy ” to be made “ in the division ” of the estate which was directed. The legacy referred to was the legacy to him and his family to be obtained by that division; and the division into five equal shares required by the fourth clause was the only one named as such in the will.

The language used in providing for the distribution of the shares among the members of each family strengthens this conclusion. Except to the children of her son Jarvis, she set apart specific sums to her grandchildren in each family, and gave the rest of the share to their parent. In those cases there was no doubt that the share would be sufficient for the payment of these sums, with a substantial residue for the parent. But knowing that the share for the family of Jarvis would be much smaller, and of uncertain amount, and adopting a method which would be equitable, whether the amount should be large or small, she did not name specific sums for his children, but divided the whole among him and them equally.

In view of all the provisions of the will, we are of opinion that the indebtedness of Jarvis W. Robinson should be set off against the share of the estate devised to him and his children.

Decree accordingly.