
    MESSMANN v. EGENBERGER et al.
    (Supreme Court, Appellate Division, First Department.
    December 8, 1899.)
    Advancement—Will—Partial Disposition.
    A person who dies leaving a will which is admitted to probate is not-“an intestate,” within the statutes of descent (1 Rev. St. p. 754, § 23), providing that, if any child of “an intestate” shall have been advanced by him, the portion shall be estimated in the division and distribution of the-“estate of the intestate,” etc., although he does not dispose of all his property, because some parts of the will violate the statute against perpetuities..
    Appeal from judgment on report of referee.
    Action for partition by Elizabeth Messmann against Annette Egenberger, William Egenberger, and others. From an interlocutory-judgment entered upon a referee’s report, the plaintiff and the defendant William Egenberger appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHLIN, and INGRAHAM, JJ.
    Charles H. Machin, for appellant Elizabeth Messmann.
    L. A. Fuller, for appellant William Egenberger.
    Henry Brill, for respondent.
   INGRAHAM, J.

This action was brought for a partition of real property. The action was referred, by consent, to a referee,, upon whose report an interlocutory judgment was entered, and from that interlocutory judgment the plaintiff and one of the defendants appeal. There is no question of fact in dispute, the case presenting only a question of law. It appears that one Joseph A. Egenberger was seised and possessed of a lot of land in the city of New York, and that on the 21st day of June, 1891, he died, leaving a last will and testament, which was duly admitted to probate. By his will, after appointing executors, he directed, authorized, and empowered his executors, immediately after his decease, to take charge of all his estate, real and personal, or -of which at the time of his death he might be seised and possessed, in trust, to have and to hold the same as trustees, “nevertheless subject to the directions and stipulations of this, my last will and testament, and I direct as follows.” The will then directed that the debts and funeral expenses be paid; that the executors erect a monument upon his burial lot; that all his apparels, jewelry, furniture, and all and anything to his household belonging, be given to his wife; that his real estate should not be sold during the lifetime of his children William Egenberger and Elizabeth Egenberger, but should be held in trust for them during the whole term of their respective lives, “and upon their death shall be sold, and the amount and proceeds from such sale shall be divided among the children of my said son, William Egenberger, and the children of my daughter Elizabeth, in case she should leave any issue; if she should die without leaving any issue, then her share shall be divided among the children of my son William Egenberger and my son Edward Egenberger, or his children.” The seventh clause of the will provided that the incomes from the estate, both real and personal, should be paid over to the testator’s wife, Elizabeth Egenberger, née Schiebel, during the whole term of her natural life, to be used and applied by her at her discretion and without any restrictions; she to have full charge of the real property, and also the full incomes from the personal property, but should receive said incomes and accept them in lieu of her dower and all of her dower and right in the estate. The eighth clause provided that, after the death of the testator’s wife, “my executors and trustees shall take the incomes from my estate, providing, however, that the taxes, assessments, and repairs of my real property are paid and done, and the real property kept in good order, and divide the same among themselves, namely, one-half of the surplus from incomes to go to my son William Egenberger or his children, and the other one-half to my daughter Elizabeth Egenberger, married to George Messmann, or her children.” The tenth clause bequeaths the indebtedness of his son William to his wife. The eleventh clause is as follows:

“The reason why I have not bequeathed my son Edward Egenberger with any part or portion of my estate is simply that he has already received an amount fully equal, in having received his education, full support, and clothing, and besides a sum of nine thousand three hundred and twenty-nine Vioo dollars, which I consider a full equivalent for all his interest in my estate; and if he should contest this, my will, then the sum of money which he has received already shall become due, and my executors and trustees shall collect it, and apply it the same as the other portions of my estate.”

This will was duly admitted to probate, and subsequently an action was brought in this court by the executors named in the will' for a construction thereof, and judgment was entered in that action, on the 10th day of June, 1892, in which it was adjudged that the sixth, and eighth clauses of the will were invalid and contrary to law, and void, as the alienation of the estate, real and personal, is suspended, for more than two lives in being; that by reason thereof the real estate descended to the heirs at law of the said testator; subject, however, to the life estate of the widow; that the widow of the testator-has a life estate in the real and personal estate of which the-testator died seised, and that she is entitled to the use and income of said real and personal estate during the term of her natural life; and that all "of the other provisions, dispositions, and directions of" the said will are valid, and proper to be carried into execution.- No appeal was taken from this judgment, and as it stands it binds all the parties to this action. It would seem that the legal effect of this judgment was to declare void any trust provided for by the will,, giving to the widow of the testator a life estate in the real and personal property, the remainder vesting in the heirs at law of the testator; and this conclusion is not disputed. .

The referee found that the testator, at the time of his death, held' the promissory note of the defendant Edward. Egenberger, which was. as follows:

“$9,130.81. New York, Feb. 2nd, 1891.
“On demand, after date, I promise to pay to the order of Joseph A. Egenberger, nine thousand one hundred and thirty si/100 dollars, at 69 Nassau street Value received. Edward Egenberger.”

The referee also found that this note has not been paid, and that it is the obligation referred to in the eleventh clause of the will. And, as a conclusion of law, he found that the premises described in the-complaint are now owned and possessed by the plaintiff and the defendants Annette Egenberger, as grantee of Edward, and William Egenberger, in equal shares, subject to the life estate of the defendant Elizabeth Egenberger in the entire property. The appellants-controvert this conclusion of law, insisting that the advance to the defendant Edward Egenberger by the testator, represented by this demand note, and which was referred to in the eleventh clause of the will, was an advancement which, under the Revised Statutes, should have been charged against the defendant Edward Egenberger. Whether or not the amount represented by this note was an advancement by the testator to his son is the sole question presented upon this appeal.

It is not disputed that the right to charge against an heir at law a sum of money advanced by the ancestor did not exist at common law, but is entirely regulated by statute. The provisions of fhe statute in force at the time of the probate of the will are in section 23 of the statute of descent (1 Rev. St. p. 754). It is there provided:

“If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section,only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed.to his next of kin, according to law; and if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.”

The question presented is whether or not the decedent was an intestate, within the meaning of this section. This question was presented in the case of Thompson v. Carmichael’s Ex’rs, 3 Sandf. Ch. 120. It was there contended, on the one side, that these provisions apply where there was an intestacy pro tanto; and, on the other side, that they are not applicable at all where there is a will proven. The court, after examining the authorities, held that a total intestacy appears to be contemplated, saying:

“The words are, ‘an intestate,’ and, the provisions relate to personal estate which has not before been mentioned in the chapter, as well as to real estate. It is used as a general term, without qualification, and, as such, its meaning is well known and clearly defined. But, in its legal and popular sense, it means a person who dies without making a will. The same language, ‘an intestate,’ without addition or qualification, is used in the Revised Statutes, in the article relating to granting letters of administration. In short, a man who dies leaving a will is not an intestate.”

The conclusion arrived at in this case has never been questioned, but seems to have been approved and followed whenever the question has been presented. Kent v. Hopkins, 86 Hun, 611, 33 N. Y. Supp. 767; 1 Am. & Eng. Enc. Law (2d Ed.) 764, and cases there cited.

Applying strictly the language used in this statute, a person who dies leaving a will which is admitted to probate cannot be said to be “an intestate.” He may die intestate as to certain portions of his property, but other portions are disposed of by his will. In this case, it is quite clear that the deceased was not “an intestate.” He did not die intestate as to this particular property, as a life estate in it was created in favor of his wife by the will. The testator disposed of the remainder after the death of his wife, and, but for the fact that those provisions contravened the statute against perpetuities, there would be a complete disposition of all his property. The disposition,however, of the remainder, after the termination of the life estate in the wife, has been declared invalid, as in violation of the statute, and consequently, as to such remainder, he dies intestate. But a material interest in this very property was disposed of by his will, and it was only as to the ultimate disposition of the property that the statute of descent applied. The object of the statute is quite clear. When a will has been made disposing of the testator’s real and personal estate, it will be presumed that his intention as to charges for advancements made to his children during their lives will be disposed of by the will, or provision made for carrying out his intentions in regard to them. Where he makes no will, then the law steps in and disposes of his estate; and, in order to make an equitable and proper disposition of it, it is necessary to consider the advancements made by the testator during his life, and for that purpose provision is made which will insure the equitable disposition of the intestate’s property.

It may be that this construction of the statute will defeat the intention of the testator, but his intention was defeated by reason of his endeavoring to create an estate by his will which is prohibited by law. This construction has been given to the statute for over 50 years, without dissent, so far as appears, in any court of this state. It is consistent with the construction given to the statute from which this provision in our statute came, by the courts in England, and we would not be justified at this date in changing what has become a rule of property.

It is not necessary to determine the effect of the clause of the will relating to the indebtedness of the defendant Edward Egenberger. From the note it would appear that the transaction was rather a loan to the son by the testator than an advancement. An advancement is defined to be “a gift by anticipation, from a parent to a child, of the whole or a part of which it is supposed such child will inherit on the death of the parent.” Bouv. Law. Diet. If the will had not mentioned the transaction, it could not, I suppose, be disputed that the representatives of the estate could have recovered the amount of the note from the maker. It would appear that the clause in the will relating to this indebtedness would, in effect, give to the maker of the note the amount due as his share of the estate; but I cannot see that this would affect his right to take a share of the property of which the testator died intestate. As, however, we have taken the view of the statute above indicated, it is not essential that we should discuss this question further.

It follows that the judgment appealed from was right, and should be affirmed, with costs. All concur.  