Leask v. McCarty

Ingraham, P. J.: When the testator died he had in his possession five promissory notes of $1,000 each, signed by the defendant and payable to the order of the testator, which with interest amounted to' $6,962.50. The defendant admits the making of the notes and receiving from the testator up or prior to the time that they were dated the. sums specified. In the testator’s will there was [797] a trust fund created of $40,000, the income of which was to he paid to the defendant for life, and she was given a share of his residuary estate of which, on a distribution by the éxecutors of the sum of $650,000 the defendant was entitled to more than $25,000. This sum the executors paid to the defendant by delivering to her the five notes and the balance in cash which the defendant received and for which she gave a receipt for the full amount of her share of this distribution of the testator’s estate. The sole question presented in this case is whether the executors are entitled to deduct from the defendant’s distributive share of the estate the amount of these notes. I agree with Mr. Justice Clarke that the. evidence would not justify us in reversing the decision of the court below that these notes were existing obligations at the time of the testator’s death: In a case between these executors and a nephew of the testator, where the testator had advanced money to his nephew and had taken from him promissory notes, we upheld the claim of the executors that they were entitled to deduct from the share of a residuary legatee the amount due to the estate represented by promissory notes of the legatee held by the testator and the court even went so far as to allow the executors to deduct from the amount due to the nephew subsequent payments made by the testator for which he took no notes and as to which there was no evidence that he intended that the payments were made by way of loan, or that the testator ever intended or which the testator ever expected would be paid. (See Leask v. Hoagland, 136 App. Div. 658; 144 id. 138.) The testator advanced to the defendant the sum of $1,000 a year, taking therefor promissory notes whereby the defendant promised to repay the sums advanced to the testator. There was no question of advancement and no postponement of the obligation to repay until after the testator’s death, nothing but an ordinary loan of money for which the borrower executed and delivered to a lender her promissory notes for the amount; and it seems to me that the question is, whether upon those obligations there existed an indebtedness from' the defendant to the testator or after his death to his personal representative. If the testator had. made no provision for the defendant in his will and the [798] executors had sought to enforce payment of these notes upon this evidence it is clear that the plaintiffs would have heen entitled to judgment. Instead of proceeding against the defendant and obtaining a judgment for the amount when' the notes became due, the executors, when defendant became entitled to a payment under the will, claimed that they were entitled to deduct the amount of the notes from the amount due, and in that claim the defendant acquiesced and received- and receipted for the amount of her share in the fund then distributed, less the amount of these notes. It is now claimed that this could not be done upon the ground that where a testator has made an advancement to a relative and subsequently makes a will leaving to that legatee a, bequest, without mentioning the advancement, the amount of the advancement cannot be deducted from the legacy. (Bowron v. Kent, 190 N. Y. 422.) In that case the testatrix had advanced before her death to her niece the sum of $25,000 in consideration of her withdrawing from a will controversy to which both the testatrix and her niece were parties. That payment was made in pursuance of an agreement of settlement, and as a part of that agreement it was provided that in case, upon the decease of the testatrix, any share of her estate should pass to her niece -or her issue it should be treated as an advance upon account of such share and reckoned accordingly. The testatrix paid the $25,000 and the issue of the niece received it after the testatrix’s death, but the testatrix made a will giving a legacy to her niece without mentioning this agreement; nor was any intention in the will expressed that the $25,000 should be deducted from the provision made for the niece. The court, in determining the question as-to whether the $25,000 should be deducted from the provision made for the niece in the will applied the familiar doctrine that if the donor disposed of his whole estate by will, the doctrine of advancements has no application, unless the will specifically refers to advancements and defines what previous gifts shall be so considered, and discusses the various cases upon that subject in this State, but that case and all the cases referred to related solely to cases of advancement where a person standing in loco parentis had transferred a sum of money or property in anticipation of the [799] share of the donor’s estate which the donee would receive in the event of the donor’s dying intestate. The rule had never been applied, so far as I know, to a case of an actual loan of money by a testator to a person to whom he subsequently leaves a legacy, and, where upon the making of the loan absolute obligation is taken from the borrower to repay to the testator the sum of money loaned. There is not in that case an advancement to which the rule in Bowron v. Kent (supra) applies. The rule to be applied -in this case seems to me to depend upon the actual relations of the parties at the time the loan was made. If, at that time, there was no enforcible obligation for the repayment of the advances, except so far as such a repayment was to be made from a portion of the donor’s estate after the donor’s death, then there was an advancement which was covered by the rules relating to transactions of that character. If, however, the payment of the money was in fact a loan and not an advancement by which the borrower became indebted to the lender and which indebtedness the lender could enforce when the loan became payable, then there was no advancement, but a simple indebtedness which survived the death of the lender and for which his executors could enforce payment; and I think such is this case. The testator paid to the defendant $1,000 a year, and he or his representative took from her for each payment a promissory note for the amount by which the defendant agreed to pay to the testator the amount paid to her. She signed these notes at the request of the testator’s bookkeeper, who said he wished them as a memorandum; but a memorandum of what ? Certainly of the terms upon which the payments had been made, and that memorandum was in the form of a promissory note which obligated the defendant to pay to the testator the amount which she received from him. It may well be that in consequence of the pecuniary condition of the defendant the testator knew that she would not be able to pay the note if he demanded payment, but there was some motive in taking a note rather than a receipt, and that was only consistent with the fact that the arrangement under which the payment was made was a loan of money for which the maker of the note would be liable. The parties have settled the terms of the agree [800] ment under which this money was paid, and having thus settled the obligation assumed by the defendant on the receipt of the money, certainly the court has no power to change the form of the arrangement. I do not think this case was a difficult and extraordinary one within the meaning of section 3253 of the Code of Civil Procedure, and, therefore, the allowance was unjustifiable. There was a miscalculation as to the interest amounting to $634.17 which should be deducted. The judgment should, therefore* be modified by deducting the interest above mentioned and the extra allowance, and as modified affirmed, without costs. Laughlin and Miller, JJ., concurred; Clarke and Scott, JJ., dissented.