In expressing, on the former appeal in this case, our approval of the principle of equalization applied by the executors of the will of Catherine Marie Von Lingen, of Germany, in their final account, we assumed, in the absence of any evidence to the contrary, that the American securities transferred to the estate of Alberta Louise Field, on February 15th, 1917, at their market value then of $20,000, or 117,000 marks, were of that value at the time of the general distribution, on November 1st, 1919, of the German estate. The opinion referred to those securities as being of "stable value," and said, in view of the later decline in the dollar value of German marks: "The American stocks and bonds delivered on account of Mrs. Field's share in 1917 at a valuation of 117,000 marks would have been worth nearly six times that amount in marks if they had been retained for the estate until the time of the general distribution in 1919. In comparison with the current values, at the payment periods, of the shares received by the German legatees, the advancement on Mrs. Field's share was unquestionably excessive." After the case had been remanded for further proceedings and proof to the end that a decree might be passed in accordance with the principles stated in the opinion, it was proved that the securities transferred to Mrs. Field's estate in February, 1917, at a valuation of $20,000, were worth only $13,503 on November 1st, 1919, when the German *Page 370 executors made the general distribution with respect to which the legacies were to be equalized according to our former decision. The question now presented is whether the intervening decline in the value of the American securities should be considered for the purposes of the equalization heretofore approved. The lower court answered that question in the affirmative, and the executors of the Von Lingen will have appealed.
In the opinion delivered on the former appeal we said: "A reasonable construction of the receipt given by Mrs. Field's executor, for the securities delivered in pursuance of her request, supports the theory that the final accounting to which it referred was intended to take into consideration the element of time as affecting the relative value of the assets advanced." The transaction mentioned in the receipt was thus definitely regarded as a qualified advancement and not as a sale. The considerations justly requiring an equalization as of the general distribution period were stated, in part, as follows: "In view of the continuing fall in value of the German mark, it is evident that, with respect to the distribution of the estate of Marie Von Lingen, time was a highly important factor. An equality of distribution could not be accomplished unless equal payments were made to all of the legatees at the same periods, or unless the results of any variation from that method were equalized in the final accounting. It would have been manifestly unfair to discriminate permanently among the legatees in regard to prepayments, since the value of the shares would be materially affected by the time of their receipt. To give such an ultimate advantage to the American legatee, as against her German cousins, by the delivery to her of securities here of stable value, at a period when the funds or assets in Germany were declining in consequence of the great war in which that country was engaged, and in which our nation had not yet become involved, would have been particularly unjust. It is clear that the advancement in 1917 on account of Mrs. Field's share, if not subject to later adjustment, gave her a much more valuable portion of the estate than that received *Page 371 by any of the other distributees. Whether the value of the estate as a whole be measured in marks or in dollars, the advantage from a premature and unqualified payment is equally apparent. * * * The fall of the mark between the time of the advancement and the period of general distribution, because of the war and its consequences, was in effect a proportionate destruction of the estate's value. If the general distribution had been deferred until the time of the final accounting in 1924, the cash assets of the estate, of which it mainly consisted, would have been practically valueless, and the shares of the other residuary legatees would have been of insignificant value as compared with the portion which the American distributee had obtained. If the large disparity which actually resulted from the advancement on that legatee's share is not subject to the adjustment attempted by the executors, the principle of equality which the testatrix sought to apply in the disposition of her residuary estate is rendered inoperative. The executors would have no authority thus to favor one of the legatees, and, in the final account to which the receipt for the American securities referred, they have endeavored, in accordance with their duty, to prevent such a preference."
Since the sole occasion for charging the American legatee's share of the Von Lingen estate with overpayment was the subsequent depreciation of the German estate, and since the value, on November 1st, 1919, of the estate then and theretofore distributed, was to be the basis of the equalization which the executors applied and this court approved, it does not seem to me equitable that an intermediate decline in the value of the transferred American assets should be disregarded in applying the equalization principle, unless they were sold by the recipients at the advancement valuation. If, on November 1st, 1919, they were still held by testamentary successors to Mrs. Field's title, whose liabilities in regard to the proposed reimbursement would be no greater than her own, I think it would be unjust to charge them with more than the securities were then worth as against a claim for overpayment which is based upon a decrease in the value of *Page 372 the German assets to that date. In the final account by which the overpayment was ascertained, and equalization provided, the shares of Mrs. Field and other legatees were charged with interest on the amounts of their advancements to the date of that accounting. The rule of equality invoked and adopted in this case, under its exceptional circumstances, requires in my opinion that the advancements should be estimated with reference to the actual benefits which accrued from them, at or before the equalization period, to the respective legatees, or their successors in right and liability. The record does not show whether the securities advanced at Mrs. Field's request were still held on November 1st, 1919, by any of the parties sought to be charged in this reimbursement suit, nor is there any evidence to prove the extent of any advantage realized by the German legatees from prepayments which they received, the possibility of which was considered on a motion filed after the decision on the former appeal was rendered. For these reasons I favor a remand of the case for further proof, without an affirmance or reversal of the decree.
Judge Adkins requests me to note his concurrence in the view I have expressed.