
    Clara A. Bowron and Others, Individually and as Executors of and Trustees under the Last Will and Testament of Ellen Josephine Banker, Deceased, Appellants, v. Sara H. Kent, Individually and as Executrix of and Trustee under the Last Will and Testament of Ellen Josephine Banker, Deceased, and Others, Respondents.
    First Department,
    June 21, 1907.
    Will construed — when gift made by testatrix during her lifetime under special contract should be treated as advancement.
    A-.widow in consideration of the withdrawal of a contest to a will by her niece entered into an agreement, which she afterwards carried out, to deposit a sum . of money in trust, the income to her own use for life and upon her decease the principal to he paid over to the niece if living and .if not to her issue. The agreement further provided that in case any part of the donor’s estate passed to the donee or her issue the trust property should he treated as an advance made upon account of such share and reckoned accordingly.
    On the death of the donor she left a will under two separate provisions of which the niece took property. . Under one provision she took a bequest made to her mother, sister of the testatrix, who .died after the making of the will but before . the testatrix. She also took under another provision which divided the residuary estate into shares, the income of each share to he paid hy trustees to nieces of the testatrix during their- natural lives and- upon the death of each the principal in fee to their issue then living.
    
      Held, that in the light of the whole transaction the sum received under the trust agreement must be treated as an advance upon the share coming to the niece by reason, of the death of her. mother; hut that the life interest-in the trust created by the will was not subject to deduction.
    Appeal by the plaintiffs, Clara A. Bowron and others, individually and as executors and trustees, etc., from certain parts of a judgment of’ the Supreme Court in favor of the. defendants, entered ih the office of the clerk of the county of New York "on the 9th day of March, 1907, upon the decision of the court rendered after a trial at the blew York Special Term.
    
      Augustus H. Hand, for the appellants.
    
      Joseph F. Daly, for the respondents Sara H. Kent and others.
    
      J. Noble Hayes, guardian ad litem, for the respondent Dorothy Kent.
   Ingraham, J.:

James II. Banker died on the 10th of February, 1885, leaving a last will and testament which gave to his wife, Ellen Josephine Banker, the bulk of his .estate. Mrs. Banker presented this will for probate to the surrogate of Westchester county. Mr. and Mrs. Banker had no children, but the defendanbSara H. Kent had lived with Mr. and Mrs. Banker from the 'time she was twelve years of age, and they had supported, clothed and educatedlier. At Mr. Banker’s suggestion, she adopted the name of Banker and remained with them until her marriage in 1881 to Bockwell Kent. . After Mr. Banker’s will had been filed for probate the defendant Sara H. Kent intervened in the probate proceedings by leave of the surrogate and answered the petition for probate, alleging: that the instrument presented for probate was not the last will and testament of the decedent,.but that- a prior will should be admitted to probate as the last will of the decedent in which Mrs. Kent had an interest. Subsequently by an agreement between Mrs. Banker and Mrs. Kent the opposition to the probate of Mr. Banker’s will was withdrawn. In such agreement it was provided that: “ Second. Out of the property which shall come or belong to Mrs. Banker through or under the said will she shall place twenty-five thousand dollars with trustees upon trust to apply fjie net income thereof to her own use during her natural life and, upon the decease of Mrs. Banker, to pay over the principal to Mrs. Kent if living, or if deceased, to her issue (taking per stirpes) who shall then be living and with or subject to a general and beneficial power of testamentary appointment by Mrs. Kent.” This agreement also contained the following provision ■ upon which the question in this .case arises: Fourth. In case upon . the decease. of Mrs. Banker any share of her estate shall pass to Mrs. Kent or her issue, the value or benefit of the said trust to Mrs. Kent and her issue shall be treated as an advance upon account of such share aiid reckoned accordingly.” ' In consequence- of this agreement, which was dated June 15, 1885, the opposition to Mr. Banker’s will was withdrawn and it was duly admitted to probate on the 29th of June, 1885.

On the 5th of August,' 1889, Mrs. Banker executed and delivered to tlfe Farmers’ Loan and Trust Company, as trustee, á bond for the sum of $25,000, secured by a mortgage upon certain real property upon trust, that the income of the trust fund, should be paid to Mrs. Banker during her life, and upon her decease the principal of the trust fund should be collected by the trustee and paid over to Sara H, Kent, if living, or if she "is then deceased to her .issue, share and share alike. ' •Subsequent to the death of Mrs. Banker her executors paid to the Farmers’ Loan and Trust Company, as trustee, the sum of $25,000 in satisfaction of - said bond and mortgage, which the trustee paid'to the defendant Mrs. Kent.

After the creation of this trust, and on February 20, 1903,. Mrs. Banker died, leaving a last will' and testament, dated August 6, 1898, which was admitted to probate, which appointed Mrs. Kent an executrix, and which by the 5th clause directed the trustees to divide one-fifth of the testatrix’s residuary estate into as many shares as might be. necessary, and to allot one of such shares t.o each of the three children (of 'which Mrs. Kent was one) of the testatrix’s sister; Clara Holgate. The.trustees were to receive the rent, income and-profits of each of said shares, and apply the net income- realized therefrom to the use of the person for whom the same was so allotted during his or her natural life, and upon the decease of each . óf them the share Ayas to be paid over and transmitted absolutely in fee to his or her living children. . ín case either of them should die leaving no lavvful issue, then the share of the one dying was to be paid over and transferred to the lawful issue of the 'remaining beneficiaries, and by the 9th clause directed orie-fifth of the residuary . estate to be paid over by the testatrix’s' trustees or executors “to-the same person or.persons and in the same shares and proportions as by the laws of the State of Mew York would inherit real estate from m,e in case I died'intestate.”

At the time this will Avas .executed Mrs. Kent’s mother, Clara Holgate, was alive, and would'have been entitled under the 9th clause of the will to a share of the one-tifth part of the residuary-estate devised and bequeathed to the testatrix’s heirs at law; but after the making of the will, and before the death of the testatrix, Olara Holgate died, so that upon the death of the testatrix Sara H. Kent became entitled to' a share of this residuary estate. The trustees received as principal under the will of Mrs.- Banker the sum of .$75,433.55 under the 5th clause of the will in trust for Sara H. Kent, with remainder to her children; and under the 9th clause of the will Mrs. Kent would be entitled absolutely to two-forty-fifth parts of the testatrix’s residuary estate. Of that amount the defendant Sara H. Kent has been paid the sum of $11,661:69, and is also entitled to two-forty-fifth parts of the amount -which shall be realized -by the trustees upon the sale of the real estate of the testatrix still remaining unsold.

.. The learned trial court- held as a conclusion of law that the devise and bequest of one-fifteenth of her residuary estate in trust for the, life use of the defendant . Sara H; Kent, and the absolute devise and bequest of two-forty-fiftli parts of the residuary estate, tp the defendant Sara H. Kent were each absolute and unqualified, and that the value or benefit of the trust provision agreed to be. created by agreement between the said Ellen Josephine Banker and Sara H; Kent, dated June 15, 1885, and thereafter created by the instrument of trust executed by the said Ellen Josephine Banker to the Farmers’. Loan and Trust Company bearing date August 5, 1889,- was not and is not to be treated as an advance upon the devise and bequest, of the -two-forty-fiftli parts ■ of the residuary estate to the defendant Sara H. Kent or of the on'e-fifteentli part óf said residuary estate for the life use' of the ■ said Sara U. Kent or either of them, and that this agreement does not require the said Sara H. Kont to bring the value or benefit of ■ the trust provisions directed to be created by said agreement of June 15, 1885, into hotchpot as part of the estate of the said Ellen Josephine Banker, deceased, or in any way to account for the, moneys paid to the said defendant Sara H. Kent by the said Farmers’ Loan.-and Trust Company, the trustee under the said trust instrument of August 5-, 1889, or for any part of said money'; and the correctness of this conclusion is the only question presented upon this appeal.

To ascertain what was intended by this agreement of June 15, 1885, I think it essential that we should keep .clearly in mind the circumstances .under which that agreement was executed. Mrs. Banker presented for probate a will of her husband which entitled her to his estate'. Mrs. Kent, being in á position to .contest that will, interposed objection to its probate, but by an arrangement between Mrs. Banker and Mrs. Kent the objections were withdrawn, and in consideration therefor Mrs. Banker created' a trust, by which Mrs. Kent would become entitled to the sum of $25,000 upon Mrs. Banker’s death. By this arrangement there was assured to Mrs. Kent upon Mrs., Banker’s death the sum of $25,000 out of Mrs. Banker’s property, over the ultimate disposition of which Mrs. Banker had- no control. Mrs. Kent would, however, upon the death of her mother, .be one of Mrs. Banker’s next .of kin and heirs, at law, and in the event of' Mrs. Banker dying intestate, after the death of, Mrs. Kent’s mother,, would be entitled to a proportion of Mrs. Banker’s real and personal property. There is no evidence that Mrs.. Banker had made any will at the time that this agreement of June 15, 1885, was executed, or that Mrs. Banker at that time contemplated making Mrs. Kent a legatee or devisee of any portion of her property..

At the time, of the execution of this contract there were two contingencies upon which Mrs. Kent would be entitled to a share in Mrs. Banker’s estate upon Mrs. Banker’s death: One, in the event that Mrs. Banker should die intestate after the death of Mrs. Kent’s mother.; and the other, that Mrs.. Banker should make a will bequeathing- or devising to Mrs. Kent any portion of her property ; and we-must assume that the parties to this agreement .of June 15, 1885, understood this situation. By this agreement Mrs. Banker undertook to place $25,000 of her property in such a position that Mrs. Kent would be absolutely entitled to it on Mrs. Banker’s death. That being the situation, Mrs. Banker and Mrs. Kent agreed that “ In case upon tlie decease of Mrs. Banker, any share of her estate shall pass to Mrs. Kent or her issue, the value or benefit of the-said trust to Mrs. Kent and her issue shall be treated as an advance upon account of such .share and reckoned .accordingly.” The question is what these, parties contemplated when they signed this agreement. If they had only contemplated the contingency of Mrs.. Kent being entitled to a distributive share in Mrs. Banker’s estate upon her dying intestate, it seems'to me that different language would have been used. The agreement is not that in case Mrs. Kent should receive a portion of Mrs. Banker’s estate as heir at law or next, of kin that this sum of $25,000 should be deducted from that amount, but that in case upon the decease of Mrs. Banker any share of her estate should pass to Mrs..Kent or her issue. Now, by Mrs. Banker’s will a share of Mrs. Banker’s estate has passed directly, to . Mrs. Kent, namely two-forty-fifth parts of Mrs. Banker’s residuary estate. It passed by will and not by the intestacy law, but the agreement, as before stated, is not confined to a share of Mrs. Banker’s estate that passed under the Statute of Distributions or as heir at law, but if any share of the estate should patss, and á share of Mrs. Banker’s estate has passed. It seems to me quite clear, therefore, that the condition contemplated when -this agreement was made has actually happened and that a share of Mrs. Banker’s estate lias passed to Mrs. Kent under Mrs: Banker’s will. And it seems to follow that under .this agreement by which Mrs. Kent has received the sum of $25,000 upon Mrs.,Banker’s death that amount must be considered as an'amount advanced to Mrs. Kent “upon account of such share,” namely, the share that lias passed to Mrs. Kent of-Mrs. Banker’s property under her will.

I am inclined to agree with the Special Term that the creation of the trust in favor of Mrs. Kent under the 5th clause, of the will does not come within the terms of this provision, for it cannot be said that the amount of that trust passed to Mrs. Kent or her issue under the will. Mrs. Kent has a life estate in the income of the" trust with a remainder over which will go to her issue if they survive her, or if they do not it will go to others, but I think that the direct bequest to Mrs. Kent under the 9th clause of the will creates the very contingency that was contemplated by this agreement of June 15, 1885, and that this sum of $25,000 must be considered as an advance payment to Mrs. Kent under the 9th clause of the will.

The authorities relied upon by the court below (51 Misc. Rep.136) and by the respondents upon this appeal do not at all apply, as this is not a case of an advancement by a parent to a child to whom .the parent leaves a legacy by a will subsequently executed when the intention of the testator is to be ascertained only from the provisions of the will and not from an independent contract upon which, the right of the legatee or devisee, is to be determined. It may be assumed that if Mrs. Banker had simply advanced a sum of money to Mrs. Kent without any agreement as to its return so that there was no ‘obligation on behalf'of Mrs. Kent to either return the property to Mrs. Banker during her life or to her estate- after her decease, that this bequest and devise to Mrs. Kent of a portion of Mrs. BankeVs estate would not be subject to any deduction because óf such advance or gift, but a trust was created by which Mrs. Kent would be entitled upon Mrs. Banker’s death to $25,000 out of Mrs. Banker’s property, and as part consideration upon which that trust was created Mrs. Kent had agreed that .this should be considered as an advance payment on account of any share of Mrs. Banker’s estate-which should- pass to Mrs. Kent upon Mrs. Banker’s death. In view of this express agreement between Mrs. Banker and Mrs.. Kent, it was quite unnecessary that Mrs. Banker should refer to the trust in her will, especially as it appears that at the time the will was made' Mrs. Kent ivould not have been entitled to any portion of' this residuary estate under the 9tli clause of Mrs. Banker’s will. It was after the death of Mrs. Kent’s mother, subsequent to the execution of the agreement and the will, that Mrs. Kent became entitled to a distributive share of Mrs. Banker’s estate.

My conclusion, therefore, is that this agreement should be given effect, - that Mrs-. Kent’s: interest, under the 9th clause of Mrs. Banker’s will is subject to the contract, aild that Mrs. Kent is- only > entitled to receive the amount, if any-, that is in excess of $25,000, which she has received under this agreement. --.

The judgment should be modified accordingly, with costs to the plaintiffs and'the guardian ad litem payable out of the estate.

McLaughlin, Laughlin, Clarke and Scott, JJ., concurred.

Judgment modified as.directed in opinion, with costs to the plaintiffs and the guardian ad litem, payable out of the estate.  