131 A. 727 | Pa. | 1925
This appeal is from a decree of the Orphans' Court of Philadelphia County, dismissing exceptions to adjudications confirming trustee accounts in a trust created by the last will of James Gowen, who died January 8, 1873, leaving to survive him a widow, since deceased, and eight children. One son, Henry G. Gowen, died in 1909 leaving to survive him a son, Morris W. Gowen. Letters of administration on the estate of Henry were granted to appellant June 25, 1924. In the distribution of James Gowen's estate, Morris claimed his father's share. On its disallowance and discharge of exceptions thereto, Henry Gowen's administrator appealed.
Item 8 of the will of James Gowen sets forth an indebtedness of Henry to decedent on three separate bonds aggregating with interest the sum of $44,628.86, and provides "that the then existing amounts of the said indebtedness shall, according to the said amounts respectively, be deemed and taken to be advancements on account of the shares respectively apportionable as herein before directed for the benefit of . . . . . . my son Henry, and that no money shall be appropriated to the share apportionable to my son Henry, until the share apportionable to or for my other children shall have actually amounted to the principal and interest then due upon the said existing indebtedness. . . . . ., and while nothing therein contained shall be construed as releasing the indebtedness of my son Henry to my estate, yet I do authorize and empower my executors and the survivors and survivor of them, to use their discretion as to proceeding to collect the said indebtedness."
Appellant's contention is that the power contained in the will of James Gowen authorizing his executors to *222 use their discretion as to proceeding to collect the indebtedness of Henry indicates an intention not to convert the indebtedness into an advancement. The court below refused to take this view of the case and to distribute the one-eighth portion of the estate to Morris.
In the adjudication of the accounts of the trustees in which the claim of Morris was presented for the one-eighth interest of his father, Henry G. Gowen, in the estate of James Gowen, the auditing judge found the indebtedness of Henry, above referred to, remains unpaid and said, "But assuming that the claimant has a standing, I must reject his claim for the reason that the testator had expressly converted the debt of his son Henry, into an advancement and directed that no money should be apportioned to the share apportionable to his son Henry until the share apportionable to each of his other children have actually amounted to the principal and interest then due upon Henry's indebtedness. As this state of facts never existed, it is difficult to see on what theory Henry or those claiming under him are entitled to any share in the present estate until Henry's debt with interest is paid in full. That a testator can convert a debt into an advancement is shown clearly by Knight's Est.,
We agree with the conclusion reached by the court below and affirm its decree at appellant's costs.
