#### John Dibble, as Executor of the Last Will of Mary Callahan, Deceased, Plaintiff, *v.*Annie C. Richardson, and Asa B. Richardson, as Executor of the Last Will of Mary Callahan, Deceased, Defendants.

(Supreme Court, Kings Special Term lor Trials,

December, 1900.)

Will — Construction.

Where the wife, of one indebted to a person since deceased, becomes principal debtor to her and gives her a bond and mortgage for the debt, the specialty debt is not discharged by her testamentary provision “ that in case any sums of money should be owing to me or to my estate from Asa B. Richardson (the said husband) that such sum or sums shall not be claimed from him.”

Suit to foreclose a mortgage for $6,000 given by the defendant Annie 0. Richardson to the testator to secure a bond for the same amount given by the same defendant to the testator; and judgment for any deficiency is prayed for against the said defendant. Her husband is a co-executor with the plaintiff of the will of the testator, and is joined as a defendant only because he refused to unite with the plaintiff in bringing the suit. The answer of the said wife pleads payment as a defence, *i. e.,*that the debt of $6,000 for which she gave the said bond and mortgage was not her debt but the debt of her said husband, and that the testator by a codicil to her will discharged the said debt by the following clause:

*“*I hereby direct and provide that in case any sums of money should be owing to me or to my estate from Asa B. Richardson that such sum or sums shall not be claimed from him by my executors, but shall be treated as a bequest to him; and any evidence of indebtedness from him shall be given up and cancelled by my executors.”

The facts are that on October 10th, 1890, the testator signed and delivered to the Produce Exchange Bank a paper authorizing it to make loans “ from time to time ” to the defendant Asa B. Richardson against 95 specified shares of stock owned by her in the said bank as security, such loans not to exceed $10,000. On *495September 30th, 1893, the said bank loaned to1 the said Asa B. Richardson $6,000 on his note secured by 60 of the said shares of bank stock. It does not appear what loans, if any, preceded this, or whether it was a renewal. This indebtedness remained until October 23rd, 1895, when the testator gave to the said Asa B. Richardson her three drafts on three banks aggregating $6,000, which he deposited in his bank, and thereupon drew his own checK the same day to the order of said bank for $6,019.17, and therewith paid and took up his said note for $6,000; and on the same day the defendant Annie O. Richardson executed and delivered to the testator the bond and mortgage in question. On the payment of the said note the bank returned to the testator her said bank shares. While the said note remained unpaid, viz., on June 8th, 1895, the testator executed the said codicil. She died in March, 1900, aged 84 years. Interest was regularly paid on the said bond and mortgage up to the time of her death.

Everett Hasten for plaintiff.

Edward M. G-rout for defendants.

Gaynor, J.:

Mo evidence was given in respect of any indebtedness of the defendant Asa B. Richardson to the testator at the time she executed her codicil. He was not then indebted to her for the $6,000 which he owed to the bank. That her stock was up as security for his note therefor did not make him owe her any sum. But a few months after making the codicil she gave him $6,000 to pay the said note. On the same day the defendant Annie O. Richardson gave her bond therefor secured by her mortgage. This made her a principal debtor to the testator. She did not become a mere surety to her husband, but on the contrary bound herself as principal. The testator loaned $6,000 and at the same time took back the bond and mortgage therefor. The transaction shows that she did not loan the money on the faith or credit of the husband, but on the bond and mortgage of the wife. She does not appeal* to have taken any obligation from the husband therefor. The clause of the codicil *“*that in case any sums of money should be owing to me or to my estate from Asa B. Richardson that such sum or sums shall hot be claimed from him ”, etc., does not discharge the said specialty debt of the wife to *496the testator. She does not occupy the position of surety for a debt of the husband which is discharged thereby, but is herself a principal debtor for a sum which it does not appear that the husrband is bound for at all.

Judgment for the plaintiff.