(Dissenting):
• I dissent; tbe language of tbe will indicates that It was testator’s desire that bis estate should be divided equally between bis five children after tbe payment of bis just debts, which be directed his executors to first pay. It is conceded that tbe claim of bis son-in-law was a just demand. Because it was just tbe executors paid it with* out question. Por tbe same reason tbe other devisees upon tbe judicial settlement of tbe accounts of tbe executors made no objection to tbe account of tbe executors in such respect.
Tbe codicil does not indicate any intention on tbe part of thé testator either to make any other than an equal division of his property or to avoid tbe payment of just debts. It does indicate that be was aware of tbe fact that be w&s indebted to one of bis sons-in-law. Subsequent events, indicate that Palmer was tbe one. Probably be may have bad the idea that after bis death Palmer would undertake to collect more than his due. That be would take advantage of tbe opportunity to wrong tbe estate “ without prejudice from bis testimony.” Of course, be knew that it would be the legal duty of tbe executors to contest so much of tbe claim as should be unjust, and equally well knew that they were bound to pay that which was just. Bearing in mind, perhaps, as suggested *417in the majority opinion, the disadvantages the executors would labor under without his testimony, he feared a recovery, and, therefore, provided by his codicil: “ That in case any one of my children, or the husband or wife of such child, shall, up to the time of the final settlement and distribution of my estate, recover m cmy suit or proceeding, at law or otherwise, against my estate or said executors, or the survivor of them, for any sum or sums of money, accrued or claimed to have accrued to him or her as a creditor, against me, previous to the date of my codicil, then, and in that case, the gift, beqrxest or legacy, or gifts and legacies, in my said will to such child shall abate to the amount of such recovery or recoveries, and' such amount shall be deducted from such gift, legacy or bequest to such child.”
Undoubtedly the daughter by accepting the benefits of the will, accepts also the burdens annexed to them. It is equally true that by it she accepts no greater burden than the will imposes, and the court should not strain after a construction of the will and codicil, which shall cause the act of a third person to add one iota to the burden actually imposed. Especially so in a case like the one under consideration when the interests of justice, to say the least, do not require it.
Now by the codicil it was provided how and in what manner, John C. Palmer could affect this appellant’s rights as a devisee' under the will. If against the estate he “ recover in any suit or proceeding at law or otherwise,” her claim must be reduced to the extent of the recovery. In no other way could his acts affect her. It is quite apparent from the plan and scope of the codicil, viewed in the fight of subsequent events, that the testator used the language quoted advisedly. It is the duty of the court to construe it as if he did.
The words “ recover ” and “ recovery ” as here used have an established meaning. “ Recovery ” is “ the obtaining of right to something by a verdict and judgment of a court from an opposing party in a suit; as the recovery of a debt, damages and costs by a plaintiff; the recovery of costs by a defendant; the recovery of land in ejectment.” (Webster; 2 Bouviers Law Die.) And the rule is well settled that when the testator used technical words he is *418presumed to employ them in tbeir legal sense unless tbe context clearly indicates the contrary. (3 Jarman on Wills JOJ, and cases cited.) To meet that rule the court is asked to hold that by making out and verifying his bill against the estate, Palmer instituted a proceeding against the estate. Grant it, and still there was no recovery because the executors promptly paid this just demand. But beyond that the court ought not to sustain so absurd a proposition, as that to make out a bill is to institute proceedings for a recovery in a legal sense. The fact that the bill was verified does not affect the question. The statute requires claimants against the estate of deceased persons to verify the demands.
There was no recovery against the estate by Palmer, and therefore from the surrogate erred in deducting from the appellant’s share, the amount paid voluntarily and properly to her husband’s assignee. I advise that the decree of the surrogate be so modified as to direct that after the payment of debts and expenses of administration, the residue of the estate be divided equally between the five devisees named in the will, with costs of this appeal to the appellant, to be paid out of the estate.
Decree of surrogate affirmed, with costs.