Hutchinson's Appeal

47 Pa. 84 | Pa. | 1864

The opinion of the court was delivered, by

Agnew, J.

We cannot agree with the auditor in his construction of the will of Mahlon Hutchinson, which led him to charge against Daniel L. Hutchinson interest upon the capital furnished by his father, in his business as a broker.

The will of Mahlon Hutchinson, bearing date February 14th 1852, contains this clause, viz.: “ I forgive each and all my children all my advancements, loans of money, and debts due from any of them, except the capital in the hands of my son Daniel, since he entered into his present business of a broker, which is to be regarded by my executors as part of my estate.”

On the 17th of April 1854, Daniel L. Hutchinson gave his father a bond in $52,488, the then amount of the principal and interest of the various sums received by him from his father, and used in his business.

In a codicil, dated February 3d 1857, Mahlon Hutchinson republished his will, by which he ratified and confirmed the clause above stated, among other unaltered parts of his will.

That between the parties in the lifetime of the testator, they treated the moneys received by Daniel as a loan of money or debt, there can be no doubt. Daniel himself so kept his accounts with his father, charging himself with interest, and finally gave 1ns bond for the total principal and interest. Daniel also recognised his bond as a debt by including it in the inventory.

But admitting this, the question yet remains, what was the intention of the testator in his will; what did he desire should be done in Daniel’s case after his death ?

We can readily understand that, during his own lifetime, a father may determine to retain his control over the property he commits to the hands of his children, not only as a means of preserving filial regard and obedience toward himself, but of preserving the estate for the benefit of his children. As remarked by Justice Rogers, in Eckert v. Mace, 3 Pcnna. 365: “ Parents well know the value of subjection, and the danger there is of making children independent,” and the necessity therefrom to “keep the staff in their own hands.”

So far as light is thrown upon the will, there is but little value to be attached to the fact that the testator, as well as his son, treated the capital used by Daniel as a debt. Nor is the entry of the bond in the inventory, as part of the estate, of much more force. This was a duty Daniel owed to the law, which required its return for the benefit of creditors, whose rights are above and independent of the will.

But when we come to ascertain the intentions of his father, to take effect after his death, we must look at the will in a different light. It may well be supposed that, actuated by the strong feelings of a kind father, who had manifestly placed great confidence in his son, as seen not only in the advances made to set him up in business, but also in the trust confided to his care in the settlement of his estate, he intended that the principal only should be charged against him. After death had put an end to his power of control, and transferred his estate to other hands, and when a division must take place, he might very naturally wish to deal no longer with Daniel as a severe and determined creditor, and to see that no more than mere justice to his other children should be required. Looking at the relation between them as parent and child, and the confidence manifestly bestowed, we have as much reason to suppose the testator was actuated by these sentiments as to suppose he wished to retain the merciless grip of a creditor after his death. The testator made a codicil, taking no notice of his son’s bond, and making no change upon the clause in question; on the contrary ratifying and confirming it.

It is in this view we think we should approach the interpretation of this clause in his will. Then what did he say ?

“I forgive each and all of my children all my advancements, loans of money, and debts due from them to me.” Here, then, he evinced a clear intention to extinguish all liabilities of his children. Had he stopped there, no one doubts that the entire indebtedness of Daniel, for principal and interest, would be forgiven, and the bond obliterated. But, instead of closing up at this point, he proceeds to except “ the capital in the hands of my son Daniel, since he entered into his present business of a broker, which is to be regarded by my executors as part of my estate.” The first thought which naturally occurs in reading this language is this: Why did the testator change his phraseology when ho came to the exception ? He clearly discovered his intention to release all advancements, loans, and debts. If he intended that Daniel’s whole debt as such, which of course would include interest, for cash advanced when not a gift, and money lent, always bear interest, why did he not say except the debt Daniel owes me, or Daniel’s indebtedness for money lent to him to carry on his business as a broker ? Instead of this, he takes a new word and says “except the capital in the hands of my son Daniel,” &e. Certainly in the use of this new expression, he intended some change in his meaning, — he meant to convey a thought varying somewhat from the words loans of money and debts due. Did he mean capital in the ordinary sense, when we speak of the whole of the means employed by one in his business ? This cannot be, for then he Avould have compelled Daniel to account not only for the sums advanced by himself, but for all other sums employed by him as his capital in business, proceeding from any source whatever. If not in this sense, then manifestly it must be capital in so far only as capital was advanced by himself, and it must read as if he had said, “ except the sums advanced by me to Daniel in his present business as a broker.” This reading would be natural, and would satisfy clearly the change of thought or intention when he varied the expression from loans or debts to capital; for we perceive readily that while he intended to forgive Daniel all these advances as loans or debts which would bear interest, he very naturally desired to charge him only with the sums he had contributed to Daniel’s capital, and direct his executors to regard these only as a part of 'his estate.

Therefore, without refining upon the meaning of the word “capital,” as found either in dictionaries or common discourse, the tenor of the will itself connected with the parental relation, the confidence exhibited on the face of the instrument, and the fact that though a codicil was made after the bond was given, no notice of the bond was taken, and no change made in this clause, manifestly requires the word capital, used in the exception, to be understood in a different sense from debt, and to mean only the sums contributed to the capital by the testator, which, thus used, excludes the iniention to charge Daniel with interest.

The account must therefore go before the auditor again to ascertain and take an account of the amount thus lent to Daniel as capital in his business, which must be added to the estate as a part of it as of the time of the death of the testator without interest.

We think the auditor erred also in not first taking into account the sums thus owing by Daniel, and then making a division into five parts, and according to the terms of the will, setting apart one equal fifth of the estate to each.

It is a very easy way, it is true, of disposing of Daniel’s interest under the will, to say he owes more than will come to him, and therefore let him be set aside, — but this is not a proper mode of settling his claims. We cannot foresee what the future of this business may require. The auditor considered only the personal estate account; while the will blends the real and personal into an entire residue, giving an equal fifth of the-whole to each one of his children. The necessities of future settlements and distribution may require an exact statement of Daniel’s liabilities, especially since we strike out the interest on his advances during his father’s lifetime.

This disposes of all the errors assigned by the appellant, and it is ordered that a decree bé entered reversing the decree of the Orphans’ Court, and the record remitted to the said court for the purpose of being remanded to the auditor for the purpose of ascertaining the sums of money received by Daniel L. Hutchinson, of and belonging to Mahlon Plutchinson in his lifetime, and used in his business as a broker, and to charge the same in the account of the executors as a part of the estate of the testator at the time of his decease, and to restate the account and distribution according to the terms of the will of the testator; and it is further decreed that the costs of this appeal be paid out of the estate in the hands of the executors.

Strong, J., dissented. Woodward, C. J., was absent at Nisi Prius when this case was argued.