Braley, J.
The testator, after making certain provisions for his wife and stepson and for the payment of debts, directed, in the fourth clause of his will, that the residue of his estate should be divided between his wife and his three children by a former marriage, “ to share equally and alike.” But in the fifth clause, as to the share coming to his son Henry B. Dresser, he further declares, that, “ At this date and time of making this instrument there stands on my books, an account against my son Henry B. Dresser January 1st 1882 amounting to thirteen thousand nine nundred and fifty-nine and 14/100 dollars $13,959.14, which debt has been created by my endorsing of the paper of the firm of Randall Daffin & Co. of which firm my son Henry B. Dresser was a member and at whose request and for his benefit the endorsements were made and the firm having failed to pay their notes I was compelled to do so. And my son' Henry B. acknowledges that the principal and interest is rightly due from him; therefore I request that in making an inventory of my estate my executors include the amt above written, $13,959.14, with annual interest at the rate of 6 pr cent. pr annum, and that in paying out the legacies, the amount [103] found on the account against Henry B. Dresser shall be applied as a proportion of his interest in my estate.” It is the contentian of the children of Henry, who died before his father, that they are entitled to one quarter of the residue without any deduction of this amount, as the indebtedness was either discharged by a compromise with creditors at common law, or has been paid in part by the conveyance of the house and land, or was cancelled and extinguished by the testator. The money, with the exception of a trifling amount, was advanced from time to time, to aid a mercantile firm of which his son was a member, and if the transaction is viewed strictly as a loan between debtor and creditor, the composition effected by the firm, in which the testator joined, operated as an extinguishment of the indebtedness, which also would be uncollectible because outlawed at the testator’s death. But the testator did not say as in Rogers v. Daniell, 8 Allen, 343, “ that any legal debt due from either of said children to my estate at the time of my decease, shall first be deducted,” and where it was held that by the language used he meant a debt which could be enforced in a court of law.
If a conveyance of the son’s incumbered homestead had been made to him for an ostensible consideration which he deducted from the firm’s indebtedness, and then accepted a percentage in composition on the balance, the evidence leaves no doubt, that in taking title, which he later conveyed without consideration to his son’s wife, the testator acted not only at the son’s request, but for the apparent purpose of securing to him and his family the equity in the property. In fact, whatever the effect of these transactions may have been on their purely contractual relations, the only payment the testator ever received was the dividend which he duly credited on the account. At his death, with this exception, the principal of the account remained the same as at the date of the will. The testator throughout article fifth speaks of “ an account against my son Henry,” the amount of which is to be deducted, and, although he says, “which debt has been created ...” when referring to the origin of the expenditure, it is immaterial whether the pecuniary aid furnished is treated as a debt not to be collected from the debtor, or as in the nature of an advancement to be taken out of the share of the legatee, for it was not the collection or payment [104] of a debt, which the testator had in mind, but equality in the distribution of his property. Bacon v. Gassett, 13 Allen, 334. Cummings v. Bramhall, 120 Mass. 552. To give to Henry, or to his children by right of representation, an equal share in the residue, without regard to what had already been done for him, would permit him, or them, to obtain a larger portion than his stepmother or sister or brother, and defeat the purpose of the testator, who must be recognized as the sole judge as to the proportionate share which each child was to receive.
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Braley, J.
The testator, after making certain provisions for his wife and stepson and for the payment of debts, directed, in the fourth clause of his will, that the residue of his estate should be divided between his wife and his three children by a former marriage, “ to share equally and alike.” But in the fifth clause, as to the share coming to his son Henry B. Dresser, he further declares, that, “ At this date and time of making this instrument there stands on my books, an account against my son Henry B. Dresser January 1st 1882 amounting to thirteen thousand nine nundred and fifty-nine and 14/100 dollars $13,959.14, which debt has been created by my endorsing of the paper of the firm of Randall Daffin & Co. of which firm my son Henry B. Dresser was a member and at whose request and for his benefit the endorsements were made and the firm having failed to pay their notes I was compelled to do so. And my son' Henry B. acknowledges that the principal and interest is rightly due from him; therefore I request that in making an inventory of my estate my executors include the amt above written, $13,959.14, with annual interest at the rate of 6 pr cent. pr annum, and that in paying out the legacies, the amount [103] found on the account against Henry B. Dresser shall be applied as a proportion of his interest in my estate.” It is the contentian of the children of Henry, who died before his father, that they are entitled to one quarter of the residue without any deduction of this amount, as the indebtedness was either discharged by a compromise with creditors at common law, or has been paid in part by the conveyance of the house and land, or was cancelled and extinguished by the testator. The money, with the exception of a trifling amount, was advanced from time to time, to aid a mercantile firm of which his son was a member, and if the transaction is viewed strictly as a loan between debtor and creditor, the composition effected by the firm, in which the testator joined, operated as an extinguishment of the indebtedness, which also would be uncollectible because outlawed at the testator’s death. But the testator did not say as in Rogers v. Daniell, 8 Allen, 343, “ that any legal debt due from either of said children to my estate at the time of my decease, shall first be deducted,” and where it was held that by the language used he meant a debt which could be enforced in a court of law.
If a conveyance of the son’s incumbered homestead had been made to him for an ostensible consideration which he deducted from the firm’s indebtedness, and then accepted a percentage in composition on the balance, the evidence leaves no doubt, that in taking title, which he later conveyed without consideration to his son’s wife, the testator acted not only at the son’s request, but for the apparent purpose of securing to him and his family the equity in the property. In fact, whatever the effect of these transactions may have been on their purely contractual relations, the only payment the testator ever received was the dividend which he duly credited on the account. At his death, with this exception, the principal of the account remained the same as at the date of the will. The testator throughout article fifth speaks of “ an account against my son Henry,” the amount of which is to be deducted, and, although he says, “which debt has been created ...” when referring to the origin of the expenditure, it is immaterial whether the pecuniary aid furnished is treated as a debt not to be collected from the debtor, or as in the nature of an advancement to be taken out of the share of the legatee, for it was not the collection or payment [104] of a debt, which the testator had in mind, but equality in the distribution of his property. Bacon v. Gassett, 13 Allen, 334. Cummings v. Bramhall, 120 Mass. 552. To give to Henry, or to his children by right of representation, an equal share in the residue, without regard to what had already been done for him, would permit him, or them, to obtain a larger portion than his stepmother or sister or brother, and defeat the purpose of the testator, who must be recognized as the sole judge as to the proportionate share which each child was to receive.
In the will, which speaks only from his death, the indebtedness is stated at a fixed sum to be inventoried as a part of the estate, and then the amount found on the account is to be deducted from Henry’s portion. The subsequent declarations of the testator, whether oral or written, as to the meaning to be given to the language employed, or his object in making this testamentary disposition, were inadmissible to contradict or vary its terms. Foster v. Smith, 156 Mass. 379. Polsey v. Newton, 199 Mass. 450,455. The testator’s purpose having been declared, and the amount designated, if nothing further appeared, the court could at once proceed to a decree for which the requisite data had been fully supplied. If, however, the charges as shown by the books of account, which by reference are made the source of information, not only for the executors, but for the legatees, were disputed as partially incorrect or wholly erroneous, resort could be had to oral evidence to show such inaccuracies, for the purpose of ascertaining the exact sum outstanding at his death. Hoak v. Hoak, 5 Watts, 80. The will was dated on January 21,1882, and the testator died on August 15, 1899. The account on the first date showed a balance as stated in the fifth clause, but during the interval the proceedings in insolvency, to which sufficient reference has been made, intervened. A credit of the dividend was then posted, and the final balance charged off to expense account, which in bookkeeping appears from the evidence to be analogous to a profit and loss account. It is earnestly contended, that by this entry the testator intended to cancel or obliterate “ the amount found on the account against Henry B. Dresser.” But even then, if the fifth clause is read as containing the words “if not repaid or discharged at my death,” this entry does not cut down the testator’s primary meaning and [105] purpose, as there had been no actual repayment or acquittance. If in connection with this entry the testator’s letter to Mrs. Spaulding,