
    In the Matter of the Judicial Settlement of the Account of Ellwood Burdsall and Richard H. Burdsall, as Executors of the Last Will and Testament of Ellwood Burdsall, Deceased. Ellwood Burdsall and Richard H. Burdsall, Individually and as Executors of Ellwood Burdsall, Deceased, and Others, Appellants; Anna B. Griffen, Respondent.
    
      ■Will — deduction from legacies of chcarges against the legatees appearing on the testator’s books — what entries are not covered thereby — the value of property as stated on the books determines the amount of the charge. ■
    
    
      K. testator, who left surviving him two sons and one daughter, directed that his residuary estate he divided into three parts. He gave) one of these parts to each of his two sons and gave the remaining part to his executors in trust to pay the income thereof to his daughter during her life with remainder upon her death to her children. The will further provided: “ I order and direct that whatever shall be found charged on my books against either of my children shall be deducted (but that no interest be charged them thereon) from their shares respectively.”
    On the testator’s books each of the testator’s sons was charged with §14,150 representing stock and other property received by them from the testator during the latter’s lifetime. The books also showed an account standing in the maiden name of the testator’s daughter in which there were two items, one of §20,000 for a house and the other of §1,000 for ten shares of stock. The balance of §21,000 had been brought down and directly beneath two red ink lines had been drawn across both sides of the account, There was also an account standing in the married name of the testator’s daughter which'showed x no balance charged against her. It appeared that the house mentioned in the account was purchased by the testator for his daughter ás a wedding present and that, although the title was taken by the testator in his own name and so remained' at the time of his decease, the daughter’s title thereto was valid and enforcible in equity. ' "
    Held, that the apparent closing of the account Standing in the daughter’s maiden name and the opening of a new account in her married name, into which the charges in question had not been carried, coupled with the fact that the testator gave his daughter no share of his estate, but only the income thereof during life, showed that it was not his intention that the items contained in the account standing in the daughter’s maiden name should be charged against her; That as the stock given to the testator’s sons by the testator during his life was charged on his books1 at its par value, it could not be charged against them at its actual value which was considerably in excess of the par value.
    Appeals by Ellwood Burdsall and another, individually and as executors, etc., of Ellwood Burdsall, deceased, and others, from certain portions of a decree of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 9th day of April, 1900, judicially settling the account of the said Ellwood Burdsall and Richard H. Burdsall, as executors, etc., of Ellwood Burdsall, deceased.
    
      Isaac N. Mills and Jerome Alvord Peck, for Ellwood Burdsall and Richard H. Burdsall, appellants.
    
      J. Mayhew Wainwright, special guardian, for Elizabeth W. Griffen and Ellwood Burdsall Griffen, appellants.
    
      Arthur C. Palmer and Clemens J. Kracht, for the respondent.
   Hirschberg, J.:

We consider it necessary to determine only the questions which have been presented on the argument and in the briefs.

Of these, the serious question -is whether the trust share is to be reduced because of charges made by the testator upon his books against the life tenant.

The estate of the testator exceeds $500,000. By his will,, dated June 22, 1889, he bequeaths to his wife his household furniture, etc., and also gives to her absolutely the one-third part of all the remainder of his estate. He directs that the residue of his estate shall be divided into three equal parts. One of these parts he gives to each of his two sons. The remaining one-third of such residuary 'estate he gives, to quote the language of the will, “ to my executors hereinafter, named, and to the survivor or survivors of them, in trust nevertheless, to receive the rents, issues and profits of the real estate, if any, and to sell and convey the same or any part thereof on such terms as they may think proper, to purchase other real estate, to be held subject to this trust with the proceeds of such sale or sales, or with other trust funds, to invest the personal property of said one-third, if not invested, and to hold the same at their discretion, and to pay the interest and income thereof, and the rents, issues and profits of the real estate, if any, to my daughter, Anna B. Griffen, so long as she may live, and upon her decease to pay the said one-third part to her children, in equal parts, as they severally shall attain the age of twenty-one - years, and until each child shall attain the age of twenty-one years, such child shall be paid its share or proportion of said interest or income of the said one-third of my estate given in trust as aforesaid.”

The 6th clause of the will, which creates the controversy; is as follows I order and direct that whatever shall be found charged on my books against either, of my children shall be deducted (but that no interest be charged them thereon) from their shares respectively.”

The testator died December 28, 1889, leaving him surviving his widow, his two sous, his daughter and her two minor children. On his boobs is an account under the name of each of his sons, and in each account is charged the sum of $14,150, representing stock and other property received by each from his father during the latter’s lifetime. There is also an account under the name of the daughter,Anna B. Griffen, showing no balance charged against her, and also a prior recount under her maiden name, Anna 0.'Burdsall,-upon which it is claimed a balance dees' stand charged against her, -amounting to $21;000, and consisting of two items, one of $20,000 for a house in the city of New York, and the other of $1,000 for ten shares of stock. The learned surrogate has found in substance and 'effect that this account does not contain a charge against Mrs. Griffen within the meaning of the 6th clause of the will, and we approve of that finding.

The stock was purchased by the testator,-, but the certificate was taken in his daughter’s name. It-remained in the possession of the testator until his death, but the executors, the two sons, have since voluntarily delivered it to their sister. No question is seriously raised as to the title to this stock, and whether it represents a charge or not must be determined in connection with the $20,000 item, as both items are in the same account and apparently stand on the same footing.

The- $20,000 was expended by the testator in the purchase of a house in New York, which he intended to, and which he did, give to his daughter as a wedding present. There doe's not appear to have been any other wedding present given by the testator; the cost of the house was not beyond his means and station in life, and the suggestion that his daughter should repay him for such a present seenis' unnatural and repugnant. She was married on December 13,1883. She was then a minor. The purchase was mad© October 1, 1883, the title being taken by the testator in his own name and so remaining at the time of his decease. But the immediate possession of the property was delivered to the daughter ; she and her husband have lived there ever since; their-children were born there; she has paid the taxes and a considerable sum of money in permanent, substantial improvements, all with the knowledge of the deceased and all resulting in the acquisition by. her of a title to the property, valid and enforcible in equity. (Freeman v. Freeman, 43 N. Y. 34; Young v. Overbaugh, 145 id. 158.) The account with the daughter under her maiden name" was opened some years before her marriage, but the house item was not entered on it until January 1,1895. On that same date the balance of $21,000 was brought down in the account, and directly beneath it two red ink lines were drawn across both sides of the account. The new account with the daughter under her married name, and which" as has been said exhibits no charge at the time of the testator’s death, was then opened on the same page directly beneath the red lines, and comprised the only account in which entries were thereafter made relating to her.

The apparent closing of the old account by the testator by the act of drawing red lines against it, and the opening of the new account without the entry of any charges for the items in question, are acts quite significant of an intention not to include such items within the scope of the 6th clause of the will. The precise terlns of that claxxse add force to this conclusion. The deduction is to be of “ whatever shall be found chai'ged on my books against eit7ier of my children,” an expx-ession which while saxictioned by custom as importing one of xnany, in its precise and accurate sense implies only one of two. But the deduction is to be “ from their sTiares respectively.” Stxdctly speaking, the testator gave no share of his estate to his daughter. _ Indeed, he gave her nothing of that which he himself had, but only certain income to be earned and acquired after his death. The trust share lie gave to his executors, and while this was to be held by them for her benefit while she lived, no one claims that the $21,000 should be charged directly upon the provision designed for her support. The claim is that the testator intended the charge to be made against the trust share as such in diminution of the principal and so indirectly in diminution of the interest. Doubtless there are cases where such a share could be considered an entirety for such a purpose, but in this instance that construction would do violence to both the strict language of the will and the evident intention. Nothing is found charged, upon the books against the daughter’s children, and whatever the testator may have intended it may be reasonably assumed that he did not' intend that his grandchildren should. be charged with the cost of their mother’s wedding present.

It may be conceded that the testator aimed to secure equality among his children. There is strong evidence tending to indicate it. But it is by no means clear that the finding under consideration in any respects disturbs such equality. The amount.of the daughter’s gift, it is true, exceeds the sum charged against the sons respectively. But a large part of the stock charged to the sons is charged at only half its actual value; they have received dividends ranging from, ten to twenty per cent; have been engaged at steady salaries in the business, of their father’s company, and were supported at home in good style, where horses were kept by the deceased for their use. In view of these facts, and the fact that their shares are given to them out and out, while their sister receives only the life use of the remaining share, it cannot be said that our construction of the will works any inequality.

But in any event we deem the language of the 6th clause, the nature and object of the purchase which the chief item in controversy represents, and the act of the deceased in closing or barring out the first account, as controlling in the disposition of the question now under consideration.

The claim is made on behalf of the infant appellants and also by the respondent that the sons’ shares should be charged with the stock hereinbefore referred to at its actual and not its par value. It is charged, however, on the books at the par value, and such value only, therefore, comes within the terms of the clause in question as being found charged bn my books.”

The decree should be affirmed, with costs to each of the parties to this appeal payable: out of the general estate.

Goodrich, P. J., Woodward, Jenks and Sewell, JJ., concurred.

Decree of Surrogate’s Court of Westchester county affirmed, with costs to each of the parties to this appeal, payable out of the general estate.  