among other papers, her will dated May 31, 1947, the receipt of Edward S. Hope dated February 10, 1947, and the paper signed by Edward and his wife under date of June 10, 1947. The receipt, together with an inventory of testatrix' money holdings as of June 1, 1947, was in a sealed envelope, marked to be opened at the time of her death.
The question for determination is whether or not the loan of $ 3,700, evidenced by Edward's receipt, should be considered an advancement deductible from his share of the estate under the will.
The general principle has been well stated in Old Colony Trust Co. v. Underwood, 197 Mass. 320, 8 N.E.2d 792, 793, as follows: 'It is held with great unanimity that the doctrine of advancements, in the accurate use of that word, applies only in the event of intestacy, and that where the person making the advancement later makes a will containing provisions in behalf of the person to whom the advancement has been made, but not in any form of words preserving to the estate the benefit of the advancement, the will must be presumed to have been made with full knowledge of what had gone before and is therefore the final and controlling expression of the testator's purpose, and the legacies contained in it are not to be reduced by the amounts of the former advancements.' (Citing cases.)
However, it is further stated in the same opinion: 'It has been said, however, that the person receiving a gift or payment may bind himself by agreement to apply it on account of a legacy which is subsequently to be made in his behalf, so that to repudiate such agreement would be a fraud on his part. Jaques v. Swasey, 153 Mass. 596, 27 N.E. 771, 13 L.R.A. 566.'
The loan involved in the Old Colony Trust Co. case was held by the court to come within the general principle, rather than the exception, in view of the long lapse of time between the loan and will, and other circumstances negativing the intent of the testatrix that the loan should be deducted from the legacy.
In Robbins v. Swain, 7 Ind.App. 486, 34 N.E. 670, the question presented was similar to that in the instant case. A legatee had given the testatrix two receipts for sums of money, acknowledged "as part of such amount as she may see fit to bequeath to me at her death." A subsequent will bequeathed to legatee a stated sum of money, but made no mention of any sums advanced. The court there held that if the case stood alone on the will and the receipts, without explanation, the legacy should be reduced by the amount covered by the receipts; but that, in view of admitted statements of the testatrix subsequent to making her will that she intended the legatee to have the whole amount of the legacy, the legacy was not to be diminished by the amount of the receipts.
It is to be noted that in other cases where a receipt acknowledging a gift or loan as an advancement has been held not effective as to a legacy under a subsequent will, either the receipt was in terms applicable only as to a prior will or the circumstances have been such as to indicate that there was no intent on the part of the testator that the gift or loan should constitute an advancement under the subsequent will.
Petitioner argues that the court has no right to look to extrinsic facts in determining the effect of the receipts on his share under the subsequent will, that will being clear on its face.
It is true that, 'The right to look at extrinsic facts is limited to an effort to understand what the testator meant when he wrote language which, upon its face and without explanation, is doubtful or meaningless.' Baker v. National Savings & Trust Co., et al., D.C. Cir. 1950, 181 F.2d 273.
However, in the instant case, the resort to extrinsic evidence is not for the purpose of interpreting the terms of a will, clear on its face, but for the purpose of interpreting the effect of the receipt as intended by the testatrix. As stated in Robbins v. Swain, supra, 'The important consideration is the intention of the testator', and 'extrinsic evidence may be be * * * admitted in order * * * to place the court as nearly as may be in the situation occupied by the testator, so that his intention may be determined from the language of the instrument as it is explained by the extrinsic facts and circumstances'; this notwithstanding the fact that the will was clear on its face and omitted mention of prior gifts for which the legatee had given receipts. In Harper v. Harris, 8 Cir., 194 F. 44, 47, 32 A.L.R. 727, extrinsic evidence was considered in determining whether a conveyance prior to a will was intended as an advancement.
It is the opinion of this court that the facts in this case clearly indicate the intent of testatrix that her two sons should share equally in her estate. This is apparent both from the terms of the will, and from testatrix' action in preserving the receipts and on June 1, 1947 (as evidenced by the accompanying inventory of that date), subsequent to execution of her will placing it in the sealed envelope where it would be found with the will, and marking it to be opened at the time of her death.
The other papers, namely, the draft of proposed agreement and the paper signed by Edward S. Hope and his wife, appear to be self-serving and without value in ascertaining the testatrix' intent either at the time of making the loan or at the time of making her will.
I, therefore, hold that the loan of $ 3,700.00 should be deducted from the amount due the petitioner under testatrix' will.
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