In re the Accounting of Harden

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1917, which modified and affirmed as modified a decree of the New York County Surrogate’s Court settling the accounts of the executors of James Harden, deceased, construing certain portions of his will and directing distribution in accordance therewith. Testator by his will divided his residuary estate between his widow, four sons and two daughters. He then provided: “ It is also my will and I hereby direct, that the shares of stock of the Acheson Harden Company, which I may own at the time of my decease, be distributed by my said executors in kind in lieu of the proceeds of the same in money in payment if sufficient, or part payment if not sufficient of the shares of my residuary estate herein given and bequeathed to my sons, Francis Acheson Harden and James Harden, and the shares directed to be held in trust for the benefit of my sons, Acheson Adair Harden and Ross Harden, an equal amount of said stock, however, to be distributed to each of said sons, and that said stock shall be so received by said sons, Francis Acheson Harden and James Harden, and the trustees herein appointed of the said trusts for the benefit of my said sons, Acheson Adair Harden and Ross Harden, and I further direct that for the purposes of fixing the value and amount of my residuary estate in order to determine the amounts of the several shares into which I have directed the same to be divided,- and making the distribution hereinbefore directed, that the said stock be considered and taken to be worth its par value, and shall be so distributed and received in lieu of a sum of money equivalent to its par value; it being my intention hereby that all the stock which I may own in the Acheson Harden Company at the time of my decease shall be distributed by my executors in lieu of cash, in or towards the payment of the said shares herein given and bequeathed to my sons,. Francis Acheson Harden and James Harden, and the shares directed to be held in trust by my executors and trustees for the benefit of my sons, Acheson Adair Harden and Ross Harden, before applying any of said stock or the proceeds thereof towards the payment of the shares of my residuary estate herein given to my said wife or to be held in trust for the benefit of my said two daughters respectively.” The sons contended that any shares allotted in part payment of the residuary portions of the widow and two daughters shall be taken at their appraised value ($175 a share) at the time fixed for distribution; while the widow and daughters contend that these shares should be taken at their par value. The surrogate sustained the contentions of the sons. The Appellate Division modified the decree so as to direct that the stock allotted to the widow and daughters (as well as that allotted to the sons) be taken at its par value, and the income be divided equally between all the portions.