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FOURTH DEPARTMENT, JULY TERM, 1903.

(Vol. 86. bank stock. He was, as the proofs show, a man of long and varied experience in business matters.

I am not satisfied from the evidence that at the date of the will the testator had any idea that his personal property was not sufficient to pay his debts and leave a large margin.

Having in view the considerations quoted from Briggs v. Carroll (supra), the condition of the property of testator at the date of the will, as far as appearing from the evidence, does not, I think, furnish support for the plaintiffs' contention. There are some provisions of the will that are suggestive. Charles W. was given the use during his life of the residue of the real and personal estate. He was authorized to sell and convey only the real estate outside of the city of Utica. What was in Utica was to remain under the care and management of Charles. He was authorized to will it to his descendants. Special provision was made for the contingency of Charles not making a will.

The annuitants were the brothers and sisters of Charles, and all older, and the testator might naturally expect that Charles would outlive the others. So that intentionally the testator held up the title of the Utica real estate to a period beyond the probable lives of the annuitants. In authorizing the sale of the real estate outside of the city of Utica, the testator recognized the contingency of such a sale being necessary or appropriate to the proper management of the estate and to meet the exigencies that might arise. He contemplated no such contingency as to the other real estate.

It seems to me that the provisions of the will above referred to rebut the idea of any intention to charge in any event the debts on the Utica real estate, and that this is the main, if not only, subject of controversy.

As to the real estate outside of the city of Utica, if it can be said that by reason of the authority to sell there may have been an intent to charge that with the payment of the debts or legacies, it was only in aid of the personal estate, and that is not enough. There must be a charge in exoneration of the personal. It must, therefore, I think, be held that the plaintiffs have not shown a basis for reaching the real estate or its proceeds on the ground of an intent to charge in exoneration of the personal.

App. Div.) FOURTH DEPARTMENT, JULY TERM, 1903.

If debts are not by the will charged upon the real estate, the assets are not marshalled in favor of the general legatees so as to throw the burden of the debts upon lands which pass under a residnary devise. (3 Wms. Exrs. [7th Am. ed.] 211, 214; 1 Story Eq. Juris. $ 565; Hoes v. Van Hoesen, 1 N. Y. 120, 122; Nagle v. McGinnis, 49 How. Pr. 193; Rogers v. Rogers, 3 Wend. 503 ; Gray v. Missionary Soc. of M. E. Church, 2 N. Y. Supp. 878, 880.)

The foregoing considerations lead to the conclusion that the plaintiffs have not shown a right to reach the real estate in controversy for the purpose of obtaining by way of substitution or subrogation a fund for the payment of the annuity they represent.

In the Matter of the Judicial Settlement of the Accounts of JOHN

A. MERRITT, as Executor of the Last Will and Testament of Wil

LIAM W. WHITMORE, Deceased. HERBERT W. WELD and Others, Appellants; HENRY WHITMORE,

Respondent.

Will gift of the residuary estate, in which advancements are to be treated as part thereof and charged against the several residuary legatees to whom they were made -effect of the insolvency of a residuary legatee to whom more than his share has been adcanced.

The will of a testator provided as follows:

Third. All the rest, residue and remainder of my estate shall be by my executors divided into four parts or shares, to be ascertained as follows: In determining the amount of my estate they shall charge the several persons hereinafter in this paragraph named with the sums set against their respective names, as so much money by me heretofore paid to or advanced to each thereof respectively:

"Henry Whitmore, eleven thousand dollars.
“Ella Whitmore, one thousand dollars.
“ Herbert W. Weld, seven hundred dollars.
“Harry B. Weld, four hundred dollars.

1 “Helen R. Weld (now Munson), three hundred dollars.

" Arthur Wisner Weld, three hundred dollars." The clause in question stated that the testator's son, Charles Whitmore, was

indebted to him in the sum of $2,136.35, and also for moneys, the exact amount of which was unknown, which had been advanced to a firm of which the said

FOURTH DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

Charles Whitmore was a member, and which was then in the hands of an

assignee for the benefit of creditors. The will further provided: “And I direct my executors to charge Charles White

more with any balance that may remain unpaid of my claim against said firm, after applying thereon all dividends that may be received on account thereof in reduction thereof. The sum so to be charged (if any) to be in addition to the matters aforesaid.

And my executors, after adding to the sum of the estate which shall come into their hands all of the sums so to be charged, as aforesaid, as assets, shall divide the resulting sum by four, and the quotient so derived shall be taken and regarded as the one-fourth share of my estate, and the shares so ascertained shall be paid out by my executors as follows:

• To my son Henry Whitmore one of said one-fourth shares, less the sun of eleven thousand dollars.

"To Carrie Whitmore, wife of my son Charles Whitmore, one of the said one-fourth shares, less the sum so to be charged to him, as aforesaid.

“To my daughter Ella Whitmore one of said one-fourth shares, less the sum of one thousand dollars.

The remaining one-fourth share my executors shall divide into four equal parts, and they shall pay one thereof, less seven hundred dollars, to my grandson Herbert W. Weld; and one part thereof, less four hundred dollars, to my grandson Harry B. Weld; and one part thereof, less three hundred dollars, to my granddaughter Helen R. Weld (now Munson); and one part thereof,

less three hundred dollars, to my grandson Arthur Wisner Weld." The Weld children referred to in the last clause were the issue of the testator's

deceased daughter, Emma Whitmore Weld. By a codicil to the will the testator revoked the bequest to Carrie Whitmore of

one-fourth of the estate, and bequeathed the same to the children of Charles

Whitmore, share and share alike. The codicil further provided: “Second. The charges to be made against Charles

Whitmore for moneys loaned and advanced him, and to the firm of Charles Whitmore & Company, as directed by said will, shall be charged and treated as though they had been made to said children of Charles Whitmore, for the purpose of determining their share in my estate; meaning hereby that advances made to said Charles Whitmore, including loans to said firm, shall be treated and regarded only as advances on account of the one-quarter part of my estate

so given to said children." The amount of the residuary estate was $22,155.97. The total indebtedness of

Charles Whitmore to the estate was found to be $17,479.36. The aggregate

of all the advancements was $31, 179.36. Held, that, for the purpose of distribution, aavancements made to the testator's

respective children or their representatives should be treated as debts owing to the estate and as constituting part of the assets thereof and be charged

against the share to which each would be entitled; That the total amount of the advancements added to the residuary estate, mak.

ing in all $53,335.33, should be divided into four equal parts, and that each

App. Div.) FOURTH DEPARTMENT, JULY TERM, 1903.

of such parts, to wit, $13,333.83, would represent the share to which each of the testator's four children, or their representatives, would be entitled, less

any advancements made to such beneficiary; That, as it appeared that Charles Whitmore had been advanced $4,145.53 in excess

of the one-fourth part of the estate, his children were not entitled to receive

any portion of the residuary estate; That, as such excess of $1,145.53 was a worthless asset in the hands of the

executors, Charles Whitmore being insolvent, one-third of the loss arising on account of such worthless asset should be deducted from each of the other three shares, leaving $11.951.99 as the share of the estate to which, less the advancements made to them, the testator's son Henry and his daughter Ella and the Weld children were each entitled.

APPEAL by Herbert W. Weld and others, persons interested in the estate of William W. Whitmore, deceased, from a decree of the Surrogate’s Conrt of the county of Niagara, entered in said Surrogate's Court on the 21st day of March, 1903, judicially settling the accounts of John A. Merritt, as executor of Williain W. White more, deceased, and directing a disposition of the estate.

The proceeding was instituted by the executor on the 13th day of August, 1902, by filing a petition in the office of the Surrogate's Court, asking for a judicial settlement of his account and for his discharge as executor. Accompanying the petition, and made a

, part thereof, were schedules which contained a detailed statement of the account, and all the transactions of the executor as such were fully set forth. It appeared that after paying all debts and demands against the estate, the costs and expenses of adıninistration, and after deducting the commissions allowed by the court, there was a balance for distribution among the residuary legatees named in the will of $22,155.97, which constituted the residuum of the estate. Of that sum the executor had advanced from time to time various snms aggregating $1,437.80 to Ella Whitmore, one of the residuary legatees, to apply upon her legacy, so that at the time of the accounting there was actually in the hands of the executor for distribution only the sum of $20,718.17.

All persons interested were duly cited to appear upon the account. ing and did so, either in person or by counsel. No question was raised before the surrogate, nor is any raised in this court, as to the correctness of the executor's account, as to his management of the estate, or as to the amount of the allowances directed by the

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86,

decree to be paid out of the same. The only controversy between the parties arises over the amount or share of the balance of $20,718.17, which the residuary legatees named in the will are respectively entitled to receive. The learned Surrogate's Court decided they were entitled to take, and directed the executor to make payment, as follows:

Henry Whitmore, a son of the testator
Ella Whitmore, a daughter....
Herbert W. Weld, a grandson...
Harry B. Weld, a grandson...
Helen R. Weld Munson, a granddaughter.
Arthur Wisner Weld, a grandson ...

$1,965 98 8,952 08 2,218 38 2,471 09 2,555 33 2,555 33

Total. ...

$20,718 17

Upon making such payments and filing receipts therefor, the decree provided that the executor should be discharged from all further liability as such.

All of the above-named distributees except Henry Whitmore appeal from the decree so made. The executor does not appeal.

The only question presented for our consideration is whether or not the distribution directed by the decree is correct. That can only be determined by ascertaining the intent of the testator, as expressed by the language used in subdivision 3 of the 3d clause of the will. All the facts are admitted.

S. Wallace Dempsey, for the appellants.

Washington 1]. Ransom, for the respondent.

MOLENNAN, J.:

The will which is the subject of dispute was executed on the 6th day of August, 1894. Mary A. Whitmore, the testator's wife, and his two sons, Henry and Charles, were named as executors. March 10, 1898, a codicil was executed which revoked such appointment of executors, and named the petitioner, John A. Merritt, sole executor. The codicil also changed the will in another respect, to which attention will be called hereafter. The will and codicil were

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