83 N.Y.S. 879 | N.Y. App. Div. | 1903
The plaintiff, Leavitt J. Hunt, is a trustee in bankruptcy of the estate of Robert A. Osborn, bankrupt, and seeks, in this action, an accounting on the part of the executors of the will of the late Mary 0. Osborn, and to reach certain property alleged to belong to the estate of the bankrupt. Mary 0. Osborn was á special partner in the firm of John Osborn, Son &- Co., with an investment of $100,000, which partnership expired by limitation on December 31, 1887. The active partners in the firm were her sons, Frank, Charles, William and Robert A. Osborn. Just prior to the expiration of this partnership, and on the 19th day of December, 1887, Mrs. Osborn wrote a letter to her son Frank, in response to letters from him, in which she stated that she was willing to and would give to John Osborn, Son & Co. an instrument in writing guaranteeing the payment of any indebtedness that may be incurred during the limitation of the partnership, or which might then be owing th'e firm by either Charles, William or Robert, but this was to be “ only to the extent of their separate interest they may have in my estate at my death in accordance with my will, which I intend to execute at the earliest moment possible.” The letter contained other matters relating to the details, and the evidence shows that an instrument in writing was subsequently executed and delivered to the firm in terms substantially as indicated in this letter, though this instrument had been lost or consumed by a fire which occurred in the office of the firm, which was under the active management of Frank Osborn. With affairs in this condition a new firm was organized, consisting.of the same persons as the previous one, and to continue from January 1, 1888, to December 31,1892. Subsequently, and on the 7th day of June, 1890, Mrs. Osborn made and published her last will and testament, in Which her Son Frank was made executor, and in the event of his death the will provided that her sons Charles, William and Robert, and her daughter, Mary E. Polak, should assume the office of executors. The testatrix, Mary C. Osborn, died Decern
- A trustee -in bankruptcy, except in some special statutory matters not involved here, takes'mo greater estate than that of the bankrupt 3
But the will, read in connection with the guaranty agreement, and in the light of the relationship of the parties, does not warrant the interpretation put upon it by the plaintiff. The agreement contemplated that the firm of John Osborn, Son & Co., of which Frank Osborn was the active manager, might advance money to the other brothers for their own purposes, and that this need not be limited to their profits, but might encroach upon their interests in their mother’s estate as fixed in her will, which she was about té make. In the will which she did make she provided that “ each of my children and their issue shall be charged to the extent of the interest that they may respectively have in my estate at the time of my death (which was the interest less the amount advanced under the guaranty agreement) with whatever sums of money shall appear by my books to have been advanced to them subsequently to June 1st, 1890, by me, or by the firm of John Osborn, Son & Co., at my request, together with the interest thereon, to the time of my death.” While the language might have been clearer, we are of opinion that the intention was not to adjust the estate as of the date of the will, but to fit it in with the contract of guaranty for the sums which the firm might have advanced up to the time of her death, and to provide for an equal distribution of the entire estate among her children and their descendants. This was the construction which all of the heirs accepted and acted upon for several years; it is the natural and logical construction from all of the facts and circumstances surrounding the parties, and the whole
'-'-The judgment appealed from should be" affirmed, with. costs.
Goodrich, P. J,, .Hirschberg and Hooker, JJ., concurred.
j Judgment affirmed, with costs: