Opinion
April, 1904.
Clarence B. Kilmer, for executors.
Potter Kellogg, for Carrie A. Shippey.
The fourteenth clause of the testator's will was evidently designed to characterize as a gift that which otherwise might be mistaken for an advancement. In employing the word "advancement" it is evident that the testator did not employ it in its limited statutory meaning, because in that meaning it is applicable only to cases of intestacy and to moneys advanced by a parent to a child in anticipation of such child's future share of the parent's estate. Code Civ. Pro., § 2733; Real Prop. Law, §§ 295, 296.
The word "advancement" is employed by courts of equity in a wider sense to denote money or property advanced as a satisfaction pro tanto of a general legacy, given by a parent or other person standing in loco parentis to a child or grandchild. Matter of Weiss, 39 Misc. 71; Lawrence v. Lindsay, 68 N.Y. 108-112.
There is no rule or principle of law, however, by which moneys advanced to collateral relatives could in any event be held to partake of the nature of advancements, or to be followed by the legal consequences which belong to them. It does not seem probable, therefore, that the testator had in his mind the money loaned to Mrs. Shippey, when he declared money or property his legatees might have received from him an absolute gift, and that it should not be considered in any sense an advancement. The moneys loaned to Mrs. Shippey were loaned under such circumstances that they could not have been mistaken, either for a gift or for an advancement. They were intended as a loan, and always treated as such by the testator. He required Mrs. Shippey to give him her obligations therefor, which at once distinguished them from an advancement as well as from a gift. They could not in their very nature come within any reasonable definition of the word "advancement" and the conduct of the testator in renewing the obligations given to him therefor from time to time, after he made his will, and in collecting interest, showed that he did not intend them to be a gift. Rogers v. Rogers, 153 N.Y. 343.
If the testator had desired that this note of Mrs. Shippey should be given up to her and canceled, and that she be released from her liability upon it to his estate, he would, I think, have declared this intention in plain language.
Without such a clear statement an intention to cancel the note is not to be presumed. Van Alstyne v. Van Alstyne, 28 N.Y. 375; Stagg v. Beekman, 2 Edw. Ch. 89.
On the 7th of November, 1902, the executors remitted to Mrs. Shippey a check for $697.50, which they stated was the balance of her legacy under Mr. Kilmer's will, after deducting the transfer tax and the amount of her note. She at first, through her counsel, objected to receiving the check as the balance of her legacy, but she afterward sent the executors a receipt therefor, stating it to be "Balance of legacy less State Legacy Tax $142.50 and note and interest $2,160." and at the same time requested them to return her the note, which they did accordingly. The executors claim that the acceptance of the check, the signing of the receipt and the delivery to Mrs. Shippey of her note constituted an accord and satisfaction, and for that reason she cannot maintain her claim. It is not necessary to pass upon the correctness of this position, having disposed of the question involved upon other grounds.
For the reasons stated, it is my opinion that Mrs. Shippey's claim cannot be maintained. The executors were justified in offsetting the amount of her note against the legacy, and the transaction resulted in the payment in full of the legacy given to Mrs. Shippey by the testator under his will.
A decree should be entered accordingly.
Decreed accordingly.