41 N.J. Eq. 276 | N.J. Super. Ct. App. Div. | 1886
This is an appeal from an order of distribution made by the Sussex orphans court, October 21st, 1884, under the will of Uehemiah Hill, deceased. By the seventh section of the-will, the testator ordered that if, at the time of the distribution of his estate, or any part thereof, there should be due to his estate, from any of his legatees, “obligations of any kind or evidences of debt of any kind,” then “such obligation” should be first deducted from his or her share of the estate, before payment of such share or legacy. He gave a share of his estate to his daughter Mary Ann Uewbaker; another to the heirs of his daughter Magdalena Emmans; another to his son, Jacob N. Hill, the appellant; another to his daughter Sarah Jane Bowers;- and another to his daughter Susan Ellen Bloom. At the time of his death, he held two promissory notes and four receipts given to him by the appellant for money advanced by him. to the
The appellant insists that the court erred in charging against him the amount of the notes and receipts given by him to the testator in his lifetime. According to the evidence, he has ad
“ I do further order that if, at the time of the distribution of said estate or any part thereof, there shall be due to my estate, from any of the said legatees, obligations of any kind or evidences of debt of any kind, then such obligation shall be first deducted from his or her share of said estate before payment shall be made of such share or legacy.”
Obviously, that construction would be too narrow. It evidently would not be in accordance with the intention of the testator. By the term “ obligations ” he meant to include notes and all instruments by which the maker thereof binds himself to pay money. And by the term “ evidences of debt ” he meant to embrace instruments not obligations or promises to pay, and which might not be even acknowledgments of indebtedness, such, for example, as receipts for advances of money. And when in the second clause of the sentence he used the word “ obligation,” he intended to embrace therein all those things mentioned in the first clause; namely, obligations of any kind and evidences of debt of any kind. He meant, by means of this provision, to secure to his children an equal division of his estate, taking into account and charging against them any advances which he might have made to them, for which he held their obligations or written promises to pay, or of which he held other written evidence. As before stated, he held, at the time of his death, two promissory notes given to him by the appellant for advances made by him to the latter, and four other instruments of writing, signed and given to him by the appellant, acknowledging the receipt by the latter from him of different sums of money. Those sums were
The words above quoted were written by the testator, and by them he intended to identify that particular advance. The testator never owed the appellant any money. The former lived in this state, and the latter lived in Michigan during all the time in -which the advances were made. When, since the testator’s death, the appellant was asked why he did not send notes to his father, instead of receipts, he replied that that was his business. He also said that the notes and receipts (he had then examined them) were all right; that he had received every cent of the money for those papers, and that his father was very kind, and always sent him money when he wanted it. In Havens v. Thompson, 11 C. E. Gr. 383, a receipt given by a son to his father for a sum of money “ in full, iu lieu of dowry,” was held, under the evidence, to be an agreement by which the son, in consideration of the money so paid to him by his father, agreed with the latter that he would make no claim to -a share of his father’s estate, should the latter die intestate, but would be debarred therefrom by that instrument made upon what was a satisfactory compensating consideration. There is no error in the adjudication complained of in this case.
The appellant’s counsel insists that the orphans court had no jurisdiction to make the decree óf distribution, because, in order' to do so, it was necessary for it to construe the will, and he insists that that court had no authority to construe the instrument. The objection is not well founded. The one hundred and fifty-first section of the orphans court act (Rev. p. 785) provides that when an account shall have been filed by an executor or an
It is also urged, on behalf of the. appellant, that if the orphans court had authority to make the deduction, and it was right that the deduction should be made, the court ought to have treated the money due to the estate from Sarah Jane Bowers and the appellant respectively as part of the assets of the estate, for the purpose of ascertaining the shares.
It appears, by the account of 1882, that those debts were included in the inventory, and that allowance therefor was obtained in that account, on the ground that they had not been collected, and were, in fact, uncollectible. The decree appealed from will be affirmed, with costs.