App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

admitted to probate by the Surrogate's Court of Niagara county on the 16th day of January, 1899, and letters testamentary issued to the petitioner, who immediately entered upon the discharge of his duties as executor.

The testator left him surviving, his only heirs and next of kin, Mary A. Whitmore, his widow; the respondent, Henry Whitmore, a son; the appellants, Ella Whitmore, a daughter, and Herbert W. Weld, Harry B. Weld, Helen R. Weld (now Munson), and Arthur Wisner Weld, children of Emma Whitmore Weld, a deceased daughter of the testator. He also left nine other grandchildren, children of his deceased son, Charles Whitmore, and Carrie Whitmore, his wife. By the will certain personal property was specifically bequeathed, and provision was made for the support and maintenance of the widow during her life; but it is unnecessary to examine those provisions, because the widow died before the executor filed his account, and concededly the proceeds of all property which should have been included in the residuum of the estate was so treated and accounted for by the executor, and the amount, $22,155.97, is admitted to be correct.

Subdivision 3 of the 3d clause of the will, the meaning of which is in dispute, provides 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 (respondent), eleven thousand dollars. "Ella Whitmore (appellant), one thousand dollars.

"Herbert W. Weld (appellant), seven hundred dollars.

"Harry B. Weld (appellant), four hundred dollars.

"Helen R. Weld (now Munson) (appellant), three hundred dollars.

"Arthur Wisner Weld (appellant), three hundred dollars."

The 3d clause then contained the statement, in substance, that the testator's son Charles Whitmore was indebted to him in the sum of $2,136.35 for moneys loaned and advanced; also on account of

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

loans and moneys advanced to the firm of Charles Whitmore & Co., of which Charles was a member, the exact amount of which was unknown. Said firm was then insolvent, and an assignee had been appointed for the benefit of its creditors, and the testator stated that it was his purpose to file a claim with the assignee for the collection of such firm indebtedness.

It was then further provided by the will:

"And I direct my executors to charge Charles Whitmore 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 sum of eleven thousand dollars.

"To Carrie Whitmore, wife of my son Charles Whitmore, one of 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 were the issue of the testator's deceased daughter, Emma Whitmore Weld.

The codicil revoked the above bequest to Carrie Whitmore of one-fourth of the estate, and devised the same to the children of the testator's son Charles Whitmore, share and share alike, and the 2d clause of the codicil provided:

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

"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."

It is apparent that it was the intention of the testator to provide for such a distribution of the residuum of his estate as would give to each of his four children, if living, an equal share of his property, taking into account any advancements made by him to them respectively, and that in case of the death of any of them the children, if any, of such deceased child should take, share and share alike, the portion which the parent would have taken, if living; also taking into account any advancements made to such grandchildren respectively. For the purpose of carrying out such intention the testator gave specific instructions to his executor, and while at first blush they seem complicated and inadequate to give effect to such intention, upon careful examination we conclude they are ample and, if strictly followed, will produce the exact result desired, and really furnish an absolutely correct and unique method of arriving at such result.

It was the intention of the testator and so declared in almost express terms-that any and all advancements made to the residuary legatees should be regarded and treated by the executor, for the purposes of distribution of the residuum of the estate, as assets, precisely the same as if each of such legatees had given his or her dne bill or promissory note for the same, and which had come into the executor's hands. The exact amount of the advancement made to each legatee was stated in the will, except as to the amount advanced to the firm of which the testator's son Charles was a member, which amount was unknown; but he provided, in substance, that when ascertained it should be regarded the same as if made directly to such son. The amount of such firm indebtedness, after deducting $1,801.30 received from the assignee by the executor, was $15,345.01; add to that $2,136.35, the sum advanced to Charles

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86. individually, and it makes his total indebtedness to the estate, or advancement, $17,479.36.

Thus ascertained the advancements aggregated $31,179.36; add $22,155.97, the net residuum of the estate, and we have $53,335.33, which sum, for the purposes of distribution, represents the assets of the testator's estate. The testator directed that such sum should be divided by four, for the purpose of ascertaining the share to which each of his children would be entitled if living, or, if dead, the share to which the children of such deceased child would be entitled, deducting therefrom, of course, any advancement which had been made to such child or children. One-fourth of $53,335.33, the total assets (for the purpose of distribution), is $13,333.83, and it will be readily seen that such sum would represent the share to which each of the testator's four children would be entitled, if living, or, if dead, the share the representatives of such deceased child would take, provided only that all the advancements are available assets in the hands of the executor. They are necessarily all good to the extent of the share of the residuum which any such legatee is entitled to receive.

If no one of such residuary legatees had been advanced a sum exceeding the amount of such quotient, or one-fourth of the estate ascertained as above, distribution would be easy, and would be made by charging any distributee with the amount advanced, surrendering his or her due bill or promissory note, if one had been given, and paying the difference, if any, between the amount advanced and said one-fourth share of the estate, which plan or method would give to each exactly the same amount, counting any advancements received before the testator's death and what was received upon the final distribution of the estate.

The apparent difficulty in making a proper distribution in the case at bar arises from the fact that there was advanced to the testator's son, Charles Whitmore, a sum largely in excess of a onefourth share of the total estate, viz., $4,145.53, the difference between $17,479.36, the total advancement to Charles, and $13,333.83, the one-fourth of the estate, as ascertained for the purposes of distribution. The estate of Charles being concededly insolvent, such excess of $4,145.53 is a worthless asset in the hands of the executor; therefore, of the $4,145.53, the loss arising on

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1903.

account of such worthless asset, one-third, viz., $1,381.84, should be deducted from each of the other three shares, leaving $11,951.99 as the share of the estate to which the testator's son Henry and his daughter Ella are each entitled, and the portion which the children of the deceased daughter Emma should receive, if all the advancements except the $4,145.53 are regarded as good assets in the executor's hands, as intended by the testator they should be. By the terms of the will the children of the testator's deceased son Charles are to receive nothing, because there was advanced to him a sum in excess of one-fourth of the estate.

It follows that the share of the residuum of the estate which Henry Whitmore and Ella Whitmore are entitled to receive is to be determined by deducting from $11,951.99 (one-fourth of the estate, less one-third of the worthless asset), the sum or sums advanced or paid to them respectively; that the amount which the children of the deceased daughter, Emma Whitmore Weld, are entitled to receive respectively is to be determined by dividing said sum of $11,951.99 by four, and subtracting from the quotient thus obtained the amount which has been advanced to each child. Such computation or division gives to each of the four children of the testator (or the representatives of any child, if deceased) exactly the same amount of property, counting what was received before the testator's death and what will be received upon final distribution, except that as Charles received $4,145.53 more than his onefourth share and his estate being insolvent, such excess was completely lost to the estate, and such loss must be borne equally by those entitled to the other three shares.

Such being the distribution which was clearly intended by the testator, as declared in his will, we think that the authorities. cited by respondent's counsel in no manner prevent the court from giving full force and effect to such intention, but, on the contrary, establish that it is the duty of the court to decree such division of the residuum of the estate as was intended by the testator.

We, therefore, conclude that the residuary legatees, respondent and appellants, are entitled to receive of the $20,718.17 remaining in the hands of the executor for distribution the amounts following, respectively: