Arnold v. Haronn , 50 N.Y. Sup. Ct. 278 ( 1887 )

Lewis, J.:

Had Mr. Kellogg left a will containing a devise to plaintiff, expressing his intention to treat the §900 as an advancement, or had the advancement be.en made after the will had been executed, then the advancement might have been deemed an ademption of the legacy; but having by his will disposed of his entire estate, the amount received by the defendant cannot be regarded as an advancement. This doctrine is established in Thompson v. The Executors of Carmichael (3 Sandf. Ch., 120); Clark v. Kingsley (37 Hun, 246; 4 Kent’s Com., 418, 419); Hays v. Hibbard (3 Redf., 28); and there are many other authorities to the same effect. That this is the law is conceded by plaintiff’s counsel, but his contention is that the transaction was a loan of money by the father to the defendant, and that the plaintiff, as executor, is entitled to recover of defendant either the $900 or at least to the amount of the value of the real estate devised to defendant, which is about the sum of $100.

A reason for the rule of law, that where an advancement is made, and thereafter the party making it executes a will disposing of all of his estate, and makes no mention of the advancement, that it shall not be regarded as an advancement, is, that the testator must be presumed, when making his will, to have taken the advancement into consideration when determining the amounts of his bequests, and intended to cancel any obligation which might otherwise arise from the advancement. The effect of the testator’s will was to cancel the advancement, and, in addition, he gave the defendant the lands and the use, interest and income during her life of four-tenths of his personal estate.

The value of the personal estate of the testator, after deducting the amount of the specific bequests, is about $12,500. The defendant, under the sixth clause of the will, would receive the interest and income of about $5,000 ; and the testator directs that this sum, so bequeathed in trust for the defendant, his trustee, shall deposit in some savings bank in the city of Rochester, or invest it in real estate for the use and benefit of the defendant and her family. Had he wished it applied to the payment of the advancement, lie would not have given this direction to the money.

It is quite apparent that the testator did not intend that the $900 advanced by him to the defendant should be taken out of her interest money. She was to receive this interest during her life only. It was, therefore, entirely uncertain what amount she might receive. It is not supposable that he intended that the insignificant value of the real estate devised to defendant should be applied upon the $900 advanced. Had he intended that the money advanced to the defendant should be taken from the portion of the estate, he would unquestionably have made provisions in his will to that effect. The intention of the testator must prevail. (Hine v. Hine, 39 Barb., 507; Proseus v. McIntyre, 5 id., 424.)

The instrument, signed by the defendant, acknowledged the receipt from her father of $900, to be deducted from her part of his estate. The father indorsed upon the back of the writing the words, “ This is to be charged to her portion.” It is apparent that at that time it was the intention of the parties that the amount should be a charge upon the 'defendant’s portion of her father’s property. She did not agree to pay the amount in money, but accepted it upon the condition that it should be a charge upon her portion of the estate; and had her father died intestate it might have been so applied. But when the father concluded to make a will we must-assume, as he made no mention of this advancement, that it was taken into consideration in fixing his bequests to the defendant, and that he did not expect she should pay the advancement, or any part of it. If she were adjudged to pay the whole sum it might very largely exceed the amount she receives from the estate.

The principle which is the foundation of the rule that advancements made shall not apply in ademption of a legacy where the person making the advancement thereafter makes a will disposing of his entire estate, should prevent recovery of a judgment for the amount of the advances. We think the plaintiff is not entitled to recover of the defendant the sum advanced or any part of it. Neither can it be deducted from the property or income devised to her.

The defendant is entitled to judgment against the plaintiff, with costs, and judgment is directed accordingly.

Haight and Bradley, JJ., concurred.

Judgment ordered in favor of the defendant, with costs.