Strock's Estate

Opinion by Mr. Justice McCollum, Joseph Strock, by his will, dated April 26, 1887, and duly proved Nov. 20, 1889, gave to his wife Eliza the use of a house and lot therein described, and one third of his personal estate absolutely. To five of his children he gave five hundred dollars each, and the balance of his real and personal estate he gave to all of his children in equal shares. He then directed that the notes and book accounts which he held against his children should be deducted from their shares of his estate. The notes with the unpaid interest on them amounted, on the 1st of April, 1892, to $5,336.39. The accounts, without interest, amounted to $5,677.57, and were entered in a book designated by the testator as “ a charge book against my children.” The learned auditor regarded the notes and accounts as advancements, and, therefore, no part of the personal estate in which the widow [358] was entitled by the will to share. The learned judge of the orphans’ court approved the auditor’s conclusion in respect to the accounts, but held that the sums represented by the notes were debts due from the children to their father, and constituted a portion of his personal estate. A decree in conformity with this view was entered and from it the children appealed. The real question presented by the appeal is whether these sums were converted into advancements by the provision in the will in relation to the deduction from their shares of the notes and book accounts he held against them. If the notes represent advancements, the widow will receive as her share of the personal estate $754.96; if they are evidences of debts due to the testator at the time of his death, she will receive as such share $2,533.76. The nature of the accounts and the manner in which they were kept are consistent with and corroborative of the claim of the children that they were intended by the testator as advancements. They appear to extend over a period of nearly twenty-six years from- April 1, 1851, and there is no inclusion in them of any of the notes held by the testator at the time of his death. The only note referred to in the accounts is one against his son William for $400. This note was destroyed by the testator, and he then entered the amount of principal and interest due upon it in the account he kept against William in the “ charge book ” against his children. This entry shows that when the testator desired to convert his son’s debt into an advancement he knew how to do it, and that while he held the notes he did not regard the sums for which they were given as advancements to the makers of them. If the notes are not included in his personal estate the income from one third of it will hardly be sufficient to pay the taxes and make the necessary repairs upon the house and lot, in which he gave his wife a life interest. If, however, they constitute a part of his personal estate she may have from the income of her share of it enough to meet these charges and pay a small portion of the necessary expenses of her maintenance. There is certainly nothing inequitable in the construction of the will which saves to the widow one third of the amount of the notes, because under such construction the children receive, including advancements, more than seven eighths of the testator’s property, while she receives less than one eighth of it. Of [359] course these considerations cannot defeat a clear intention of the testator to cut her off with less than one third of the sum this construction gives her, but they ought not to be entirely ignored in ascertaining what he meant by his direction that the notes should be deducted from the shares of the makers of them. The notes which the testator held against his sons constituted the principal part of his personal estate, and it is manifest from the terms of his will that he regarded two thirds of such estate as more than sufficient to satisfy the legacies he gave to five of his children, because he bequeathed the balance of it to ail of his children, share and share alike. But, if the appellants’ construction of the will is adopted, there will be no personal estate on which the residuary clause can take effect. An intention to convert the notes into advancements is not, therefore, consistent with a purpose to pass the balance of the personal estate under the residuary clause. We admit that the testator might have so converted them by his will, but, in view of the other provisions of it, an inference that he intended to do so cannot be drawn from the direction to deduct the debts of his sons from their shares of his estate. The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellants.