
    Thomas H. Cole, as Executor, and Bertha A. Swezey, as Executrix, etc., of Christopher Swezey, Deceased, Respondents, v. Minnie E. Andrews (Formerly Minnie E. Crary), as Administratrix with the Will Annexed, etc., of Frank E. Swezey, Deceased, Appellant.
    
      Advancement subject to the right of the father’s executor's to treat it as an indebtedness —from what date interest is colleatible.
    
    An instrument provided as follows:
    “ I, Frank E. Swezey, a son of Christopher Swezey, hereby acknowledge that at this date I am indebted to him in the sum of $2,961, advanced to me by him between March first, 1893, and November 14th, 1893. I hereby agree that the same shall be charged against any portion of the estate of Christopher Swezey that may fall to me under any will that he may leave and that the same may be and shall be charged as an advancement against such portion. I further agree that the same may be held as a debt due by me to the estate of said Christopher Swezey, if the executors or administrators of such estate desire to treat the same as a debt and the same may be offset against the share or portion so coming to me or otherwise in form so as to accomplish the charging of the same against either the real or personal property which I may inherit from said Christopher Swezey.”
    In an action brought by the executors of Christopher Swezey against the administratrix with the will annexed of Frank E. Swezey, to recover the 13,961 ■ mentioned in the instrument, it was
    
      Held, that the instrument indicated that it was the intent of the father, in giving the §3,961 to his son, that it should be treated as an advancement to the son unless the executors or administrators of the father’s estate should elect to treat it as a debt, and that, if they should so elect, then the son should be obligated to pay the sum mentioned, together with interest, from the time when notice of such election was given and a demand made for payment;
    That, in the absence of any proof other than the commencement of the action, as to when the election and demand was made, interest should be awarded from the date appearing upon the summons, and not from the date when the money was given by the father to the son.
    Latjghlin, J., dissented.
    Appeal by the defendant, Minnie E. Andrews (formerly Minnie E. Crary), as administratrix with the will annexed, etc., of Frank E. Swezey, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of December, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      John A. Thompson, for the appellant.
    
      Frank M. Avery, for the respondents.
   McLaughlin, J.:

This action was brought to recover the sum of $2,961, alleged to have been loaned by plaintiffs’ testator to the defendant’s testator between the 1st of March, 1893, and the 14th of November, of the same year. The fact that defendant’s testator received from the plaintiffs’ testator the amount claimed between the times stated is not disputed, but the defendant claims that the plaintiffs ought not to recover because the same was not a loan but an advancement.

At the trial the only evidence adduced bearing on the subject was the following writing, conceded to have been executed by defendant’s testator:

“I, Frank E. Swezey, a son of Christopher Swezey, hereby acknowledge that at this date I am indebted to him in the sum of $2,961, advanced to me by Mm between March first, 1893, and November 14th, 1893. I hereby agree that the same shall be charged against any portion of the estate of Christopher Swezey that may fall to me under any will that he may leave and that the same may be and shall be charged as an advancement against such portion. I further agree that the same may be held as a debt due by me to the estate of said Christopher Swezey, if the executors or administrators of such estate desire to treat the same as a debt and the same may be offset against the share or portion so coming to me or otherwise in form so as to accomplish the charging of the same against either the real or personal property which I may inherit from said Christopher Swezey.
“ FRANK E. SWEZEY. [seal.]
“ Dated New York, February 20th, 1894.”

The trial court directed a verdict for the plaintiffs for the amount claimed, together with interest thereon from the time the money was received by the defendant’s testator, and defendant has appealed.

I am of the opinion that a consideration of the whole instrument above quoted, clearly indicates that the intent of the father in giving the $2,961 to his son was that it should be treated as an advancement to the son, unless the executors or administrators of the father’s estate should elect to treat it as a debt, and if they did so elect, then the son should be obligated to pay it. This is what the son agreed to do. He says: I further agree that the same may be held as a debt due by me to the estate of said Christopher Swezey, if the executors or administrators of such estate desire to treat the same as a debt. * * * ” They did elect to treat it as a debt, as is evidenced by the bringing of this action, and, therefore, they were entitled to recover the sum which the father let the son have, together with interest thereon from the time the election was made and notice of that fact was given, and a demand made for payment. There is nothing in the record to show the exact time the election was made, other than the date appearing on the summons — November 24, 1899. Taking that date, therefore, as the time when the executors made the election, the plaintiffs were only entitled to recover the sum of $2,961, together with interest thereon from that date. They have, however, been permitted to recover such sum, together with interest from the time the money was given by the father to the son, and to this extent we are of the opinion that the judgment is erroneous.

The judgment appealed from, therefore, must be modified by reducing the judgment as entered to the sum of $3,617.34, and as thus modified should be affirmed, without costs to either party.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Laughlin, J., dissented.

Judgment modified by reducing judgment as entered to $3,617.34, and as modified affirmed, without costs.  