Appeal of Mengel

[301] Opinion, Mr. Justice Sterrett : After providing for the payment of his debts, funeral expenses, etc., the testator directs his executors to convert all his property, real and personal, into money “and divide the same among my children and legal heirs in such proportions so that if all notes I hold against them or any' of them my children .and heirs, and all moneys advanced to them or any of. them, my said children and heirs, that their shares or dividend of each amounts to the same, share and share alike.” While the language thus employed by the testator to define his scheme of distribution, is not as well chosen as it might have been, it is very evident his intention was to effectuate substantial equality among all his children by taking into consideration not merely the residue that might be in the hands of his executors for distribution, but also the notes held by him against some of his children, and the amount each child had received, in testator’s lifetime, in money or its equivalent. Notes, evidently those referred to in the clause above quoted, were found among testator’s papers; and as to them there was no difficulty. The learned judge of the Orphans’ Court added their face value to the adjusted balance in hands of the executors. The same course should have been pursued in regard to the money and personal property received by each of the chil.■dren, during their father’s lifetime, and intended by him to be on account of their respective shares or portions of his estate. The court however came to the conclusion that the “ Family Book,” containing detailed statements of personal property, including household and kitchen furniture, farming implements, stock, provisions, etc., with the value of each article attached, and some items of cash received by each of the children, was an ordinary book of accounts, creating the relation of debtor and creditor between each of them, respectively, and their .father; and, inasmuch as the claims were all barred by the statute óf limitations, they must be wholly disregarded in making distribution. In this we think there was error. The “ Family Book,” containing statements above referred to in ■ testator’s handwriting, was found among his papers, and appears to contain internal evidence of intention on his part, that the memoranda therein contained should be ultimately used in making a just and equitable distribution of his estate among [302] the children, and not as a book of accounts containing charges against each as an ordinary debtor. With few exceptions, the entries in the book are without date. Under the name of each child the entries commence with, “ Catechism 18 cts.,” “ Testament $1,” followed by various other articles, to each of which is appended a cash value. At the beginning of the book is the following memorandum in testator’s handwriting and signed by him, viz.: “ The contents of this book is what each one has received for outfit who have worked until they attained their majority. John, who was away three years before his majority, therefore shall be charged one hundred dollars for the three years. For that which is charged in the book no interest shall be reckoned, except what is more than nine hundred dollars, there they shall be reckoned.” In the body of the book, under the beading “John Leiby, his outfit,” appears this entry: “ gone three years before his majority, $100.” It is claimed that this memorandum was made not for the purpose of collecting the sum named from John, but with the view of ultimately treating it as an advancement and thus in connection with the "notes, other entries, etc., in the Family Book, equalizing the respective shares or portions of the children. The general features of the book undoubtedly favor this contention. Again, under the head of “ Isaac his things for outfit,” is this memorandum: “ In money paid to Isaac out of the large book brought forward $186.17.” In testator’s “ large book ” or ledger, that sum appears as balance due by Isaac on settlement of certain business transactions between him and his father, and underneath, these words: “ This is written in the little book against Isaac for inheritance.” These entries evidently mean that the cash balance on the ledger at that time against Isaac, was transferred to the family book for the purpose of recording it there as part of the amount advanced to him, as cash or its equivalent, and to be accounted for thereafter as an advancement. Without referring to other features of the family book indicative of its purpose, we are satisfied it was kept by the testator, not as an ordinary account book containing charges against his children as his debtors, but as a memorandum of personal property, etc., received by each of them by way of advancement, and to be accounted for as such in final settlement and distribution of his. estate. [303] From the language employed by testator in the clause of his will above quoted where he speaks of money advanced to his children, notes held by him, etc.,"we would naturally expect to find, among his private papers, not only the notes to which he refers, but also some statement or memorandum evidencing the several amounts referred to and intended to be taken into consideration, as advancements, in carrying out his scheme of distribution. As to the notes, there is of course no question; and, in view of all the circumstances, we think it is sufficiently clear that the family book was intended to show the several amounts to which he refers as having been received by his children in the nature of advancements, either in money or property at the cash value affixed thereto. We are therefore of opinion that the book should be resorted to for that purpose. If it is found to contain any entries that are manifest errors or mistakes they should be corrected. The respective entries under date of April 1, 1880, purporting to be footings of each account to that date, appear to be unintelligible, and should be disregarded unless explained to the satisfaction of the court below. Decree reversed and record remitted to the Orphans’ Court, with instructions to proceed in accordance with the foregoing opinion. Costs of this appeal to be paid by the appellees.