
    Matter of the Judicial Settlement of the Accounts of Louis H. Cramer and Walter P. Butler, as Executors and Trustees under the Last Will and Testament of Chauncey Kilmer, Deceased.
    
      (Surrogate’s Court, Saratoga County,
    
    
      April, 1904.)
    Will—Provision That Money ob Pbopebty Received by the Legatees From the Testator Should be Treated as an Absolute Gift—It Does Not Apply to Moneys Loaned to a Legatee and Evidenced by Her Pbomissoby Note.
    A testator bequeathed to his niece the sum of $3,000 and by a subsequent clause of his will provided “ Whatever in the way of money or property of any kind my said legatees or either of them may receive or may have received from me in my life time, is hereby declared to be an absolute gift and in no sense an advancement and shall in no way be considered as reducing or affecting any of the legacies herein given.”
    Some years prior to the date of the will, the testator had loaned to the niece $2,000 for which he took interest bearing promissory notes made by her. The notes were renewed from time to time and at least one payment was made on the indebtedness. At the time of his death, the testator held his niece’s note for $2,000.
    
      Held, that the note should be offset against the legacy.
    That the testator did not intend the quoted clause of the will to apply to the moneys loaned to his niece and evidenced by the note.
    Chauncey Kilmer died on the 11th day of November, 1901, leaving a will dated June 14, 1900, which was thereafter duly admitted to probate by the surrogate of Saratoga county and which provided among other things as follows:
    “ Ninth. I give and bequeath to my niece, Carrie Shippey, daughter of Charles and Julia Kilmer; also to Jane Clute, wife of Jerome Clute and daughter of Harry and Lucy Ann Kilmer; also to Cordelia Kilmer, daughter of Harvey and Adaline Kilmer, each the sum of three thousand dollars, to be paid to each within eighteen months after my decease.
    “ Fourteenth. Whatever in the way of money or property of any kind by said legatees or either of them may receive or may have received from me in my life time, is hereby declared to be an absolute gift and in no sense an advancement and shall in no way be considered as reducing or affecting any of the legacies herein given.”
    The testator left him surviving a daughter, Ann Augusta Lake, and two grandchildren, Clarence B. Kilmer and Mary K. Butler, children of his deceased son Clarence B. Kilmer, to whom at different times during his life time he had given considerable amounts of money and property, without taking any acknowledgment or security therefor.
    'Some years prior to the date of his will the testator loaned to his niece, Carrie A. Shippey, the person named in his will, at various times sums of money amounting to $2,000, for which he took her two promissory notes of $1,000 each. These notes were subsequently taken up by a note dated January 11, 1900, payable six months after date, with interest, for $2,040, which was the balance due upon them at that date. When the note dated January 11, 1900, became due, Mrs. Shippey paid the testator $104, which reduced the indebtedness to $2,000, and gave him a new note dated July 11, 1900, for the latter amount. This last-mentioned note was renewed from time to time, until July 11, 1901, when Mrs. Shippey gave Mr. Kilmer a note of which the following is a copy:
    
      “ $2,000.00- July 11, 1901.
    “Six mouths after date I promise to pay to the order of Ohauneey Kilmer, two thousand dollars. For value received. With interest.
    “ Cabbie A. Shippey.”
    This note the testator held at the time of his death and it passed thereafter into the possession of his executors. It is now claimed by Mrs. Shippey that, from the provisions of the will above quoted it appears to have been the intention of the testator to relinquish his claim against her upon the note, and also to provide for the payment to her of a legacy of $3,000; that the moneys loaned to her and represented by the note which the testator held at the time of his death were declared by his will to have been a gift to her, and that the executors cannot maintain any claim against her upon the note.
    The executors, on the other hand, claim that no such intention can be found in the language employed by the testator, and that the provisions in the fourteenth clause of the will were not intended by him to apply to the moneys which had been loaned by him to Mrs. Shippey; that the note held by him was a valid claim against the maker, and constituted a part of the assets of the testator’s estate, and that it was the duty of the executors to collect the same, and they had a right to offset the amount due upon it against the legacy which they were directed by the terms of the will to pay to Mrs. Shippey.
    Clarence B. Kilmer, for executors; Potter & Kellogg, for Carrie A. Shippey.
   Lester, S.

The fourteenth clause of the testator’s will was evidently designed to characterize as a gift that which otherwise might be mistaken for an advancement. In employing the word “ advancement ” it is evident that the testator did not employ it in its limited statutory meaning, because in that meaning it is applicable only to cases of intestacy and to moneys advanced by a parent to a child in anticipation of such child’s future share of the parent’s estate. Code Civ. Pro., § 2733; Real Prop. Law, § 295, 296.

The word “ advancement ” is employed by courts of equity in a wider sense to denote money or property advanced as a satisfaction pro tanto of a general legacy, given by a parent or other person standing in loco parentis to a child or grandchild. Matter of Weiss, 39 Misc. Rep. 71; Lawrence v. Lindsay, 68 N. Y. 108-112.

There is no rule or principle of law, however, by which moneys advanced to collateral relatives could in any event be held to partake of the nature of advancements, or to be followed by the legal consequences which belong to them. It does not seem probable, therefore, that the testator had in his mind the money loaned to Mrs. Shippey, when he declared money or property his legatees might have received from him an absolute gift, and that it should not be considered in any sense an advancement. The moneys loaned to Mrs. Shippey were loaned under such circumstances that they could not have been mistaken, either for a gift or for an advancement. They were intended as a loan, and always treated as such by testator. He required Mrs. Shippey to give him her obligations therefor, which at once distinguished them from an advancement as well as from a gift. They could not in their very nature come within any reasonable definition of the word advancement ” and the conduct of the testator in renewing the obligations given to him therefor from time to time, after he made his will, and in collecting interest, showed that he did not intend them to be a gift. Rogers v. Rogers, 153 N. Y. 343.

If the testator had desired that this note of Mrs. Shippey should be given up to her and canceled, and that she be released from her liability upon it to his estate, he would, I think, have declared this intention in plain language.

Without such a clear statement an intention to cancel the note is not to be presumed. Van Alstyne v. Van Alstyne, 28 N. Y. 375; Stagg v. Beekman, 2 Edw. Ch. 89.

On the 7th of November, 1902, the executors remitted to Mrs. Shippey a check for $697.50, which they stated was the balance of her legacy under Mr. Kilmer’s will, after deducting the transfer tax and the amount of her note. She at first, through her counsel, objected to receiving the check as the balance of her legacy, but she afterward sent the executors a receipt therefor, stating it to be Balance of Legacy Less State Legacy Tax $142.50 and note and interest $2,160,” and at the same time requested them to return her the note, which they did accordingly. The executors claim that the acceptance of the check, the signing of the receipt ánd the delivery to Mrs. Shippey of her note constituted an accord and satisfaction, and for that reason she cannot maintain her claim. It is not necessary to pass upon the correctness of this position, having disposed of the question involved upon other grounds.

Eor the reasons stated, it is my opinion that Mrs. Shippey’s claim cannot be maintained. The executors were justified in offsetting the amount of her note against the legacy, and the transaction resulted in the payment in full of the legacy given to Mrs. Shippey by the testator under his will.

A decree should be entered accordingly.

Decreed accordingly.  