
    Thomas J. Ritch, Jr., as Administrator, with Will Annexed of Nathaniel C. Hawxhurst, Resp’t, v. Henry W. Hawxhurst, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    Will—Cohstbxfction of.
    The will of the testator, after the preliminary clause, was as follows: “First, I appoint my son, William C. Hawxhurst, and Joseph Whitson to be the executors of this my will, with full power to sell and dispose of my estate, both real and personal, * * * and my will likewise is that whatever obligations shall be found that I hold against my sons for whatever I have let them have heretofore, shall be considered as my property, and shall be considered as their legacy, in whole or in part, as the case may be. Next, after all my debts and funeral expenses are paid, then, in dividing the balance, let the three sons take each fifty dollars first, and then the balance be equally divided, share and share alike, among the six, reckoning Ann Elizabeth among the rest.” On the death of the executor, certain notes made by the defendant, payable to the testator, or to his executors or administrators, were found among the assets of the testator. In an action brought by the administrator (with will annexed) of testator, to recover the face of the said notes: Held, that the notes constitututed a part of the estate of the testator, and that he did not intend by his will to treat them as a gift or as an advancement to the defendant, but his design was that they should be considered a legacy to the defendant, so far as his share in the estate would permit. Bkowh, J., dissenting.
    Appeal from order of the general term of the supreme court, in the second judicial department, reversing judgment entered on decision of the court, without a jury, and granting a new trial.
    The action was brought to recover upon two notes made by the defendant, with his seal affixed, of dates November 10, 1869, and March 11, 1870, for $500 and $400, payable to Nathaniel 0. Hawxhurst, or to his executors and administrators. The payee afterwards died, leaving his will, of date June 11, 1875, which was admitted to probate and letters testamentary were issued to the surviving executor nominated by him.
    The will, following the formal preliminary clause, was as follows: “First, I appoint my son, William C. Hawxhurst, and Joseph Whitson to be the executors of this, my will, with full power to sell and dispose of my estate, both real and personal, and execute good and lawful deeds for the same, when in their discretion they shall think best, at either public or private sale. And my will likewise is that whatever obligations shall be found that I hold against my sons for whatever I have let them have heretofore, shall be considered as my property, and shall be considered as their legacy, in whole or in part, as the case may be.
    Next, after all my debts and funeral expenses are paid, then, in dividing the balance, let the three sons take each fifty ($50) dollars first, and then the balance be equally divided, share and share alike, among the six, reckoning Ann Elizabeth among the rest.
    On the death of the executor, the plaintiff was appointed administrator with the will annexed. And those notes came to his hands amongst the assets of the testator. The defendant alleged that, by the will, the notes were bequeathed to him. The trial court dismissed the complaint. The judgment thereupon entered was reversed by the general term and a new trial granted. The defendant appeals.
    
      John B. Reid, for app’lt; Geo. C. Brainerd, for resp’t.
    
      
       Affirming 1 N. Y. State Rep., 563.
    
   Bradley, J.

This will furnishes an instance of some obscurity in the declaration of a very simple purpose of the testator. And from its provisions, aided in construction, so far as it legitimately may be, by circumstances disclosed, it must be determined what his intention was, in respect to the use or disposition to be made of the notes in question. When the language of a provision of a will is plain and free from ambiguity, effect must be given to its import. When it is equivocal, the intention of the testator in the use of the language employed by him, must be sought for by reference to all the provisions of the will, and to such circumstances as may properly be entitled to consideration. And in such case there is no inflexible rule of interpretation, to govern the determination of that inquiry. While rules of construction may aid somewhat the way to a conclusion, they are not to be used to frustrate the intention of the testator, but when that is ascertained, the language and mode of expression, if of doubtful import, may be subordinated to such intention. Lytle v. Beveridge, 58 N. Y., 592; Hoppock v. Tucker, 59 id., 202; Phillips v. Davies, 92 id., 199.

The inquiry arises as to the purpose which the testator intended to express by the provision of the will that “whatever obligations shall be found that I hold against my sons for whatever I have let them have heretofore, * * * shall be considered as my property, and shall be considered as their legacy in whole or in part, as the case may be.” It is argued by the defendant’s counsel that the testator, by this provision, forgave to the sons any debts represented by their obligations held by him, whether there was any residuum of the estate or not, and that if there was any residue, the distribution, as directed by the next clause of the will, had no relation to such obligation. In other words, that they were to constitute no part of his estate for the purposes of distribution.

It appears that at the date of the will the testator’s property was worth $10,000 over his liabilities. It does not definitely appear by the record what was the amount of his estate at the time of his death, but the defendant’s counsel' says it produced a little less than $4,000 for distribution, and there is some evidence which seems to permit that inference. The shares were six, into which the residue was to be equally divided, after payment of debts and funeral expenses, and after giving fifty dollars to each of the three sons.

At the time the will was made, the amount of his estate was such that the one-sixth of the residue, after payment of his debts and funeral expenses, would have been more than equal to that of the notes. The fact that the testator took the defendant’s notes is evidence that the amount represented by them was not intended as a gift, or as an advancement, at the time they were taken. And the will shows that he did not treat it as such, as in that case it would have constituted no part of his estate.' Chase v. Ewing, 51 Barb., 597; Camp v. Camp, 18 Hun, 217.

But, on the contrary, he, by his will, declared the notes to be his property, and thus constituting part of his estate. If the purpose of .the testator was to give the defendant the notes, without charging the amount against his share in the estate, it is difficult to see why he declared them his property, and qualified the consideration of them as the defendant’s legacy, by the use of the words “in whole or in part, as the case may be.”

Whether the character of legacy should extend to the whole amount of the notes is made dependent upon something within the purpose of the testator; something which might, in a certain event, so qualify it as not to permit the entire amount of the notes to be considered a legacy. Under what circumstances could it be a legacy, only in part, and also permit the defendant to take one-sixth of the residue, after the payment of the debts and funeral expenses of the testator ? In such case there would have been no occasion to qualify the gift of the notes. The phrase used by the testator is not consistent with the position assumed on the part of the defendant, that the notes were eliminated from the estate in his behalf, for all purposes of distribution of the residue under the other clause of the will.

The testator.could, if so disposed, by his will have converted this indebtedness of the defendant into an advancement. Green v. Howell, 6 Watts & S., 203.

In that view it might, with some plausibility, be urged that it was within the design of the testator to make, by bis will, the entire amount of the notes as an advancement, and in the event that they should exceed the amount of the defendant’s share in the estate, then to be, to that extent only, considered a legacy. But this does not seem the fair or reasonable interpretation of the purpose, of the testator.

He appears to have treated the notes as his property, at the time he made the will, and declares that they shall be considered his property. It it very likely that, in view of his then pecuniary situation, he had in mind the fact that the share of the defendant in the estate might at least equal the amount of the notes, and intended to be understood that, in such case, they should be wholly treated as the defendant’s legacy, and in that manner satisfied, but in the event that his share in the estate should be insufficient to cover the amount of the notes, they should only in part go to him as a legacy. That view of the intention of the testator gives practical effect to all the provisions of the will, and renders it consistent with the circumstances, so far as they are indicated by its provisions, or otherwise disclosed by the evidence. It does not appear that the testator held any debts or obligations, in any form, against any of his sons, other than the defendant. The only purpose of discrimination between his children in respect to the distribution of his "property amongst them, expressly declared by his will, was to give to each of his three sons, fifty dollars in excess of the shares to his daughters, and nothing other than that in any manner appears to indicate that he did not deem his children equally worthy of his testamentary bounty, and in like manner entitled to it.

These views lead to the conclusion that the notes constituted a part of the estate of the testator, and that he did not intend by his will to treat them as a gift or advancement to the defendant; but his design was that they should be considered a legacy to the defendant, so far as his share in the estate would permit.

The order should be affirmed, and judgment absolute directed for the plaintiff.

All concur, except Brown, J., dissenting, and Vann, J., not voting. _  