
    In the Matter of the Estate of Sephronia H. Sherman, Deceased.
    
      (Surrogates’ Court, Chautauqua County,
    
    
      Filed January 31, 1891.)
    
    Will—Construction—Advancement.
    The deceased left a husband, two children and mother. She had at her death a claim against the estate of her deceased father, of §672.88, subject to the life use of her mother who died subsequent to her decease. After bequeathing various small specific legacies consisting mostly of household furniture to her children, husband and other relatives, her will provides as follows : “I, having heretofore advanced money to my son, Burke L. Sherman, to a larger amount than I am now able to give to my daughter Abba, and there being a sum of money coming to me from my father’s estate, now deceased, at the death of my mother, which as I understand will go to my two said children in equal amounts in case I should die before my mother leaving two children me surviving, I request my son, Burke L. Sherman, to give his share to his sister Abba to be used for her education and maintenance.” It appearing that such advancement had been made, and the life use of the mother having terminated by her decease, Held, that the testatrix died intestate as to such fund received from the estate of her father ; and that the request to her son on the contingiency named, to give his share to his sister, was invalid as a bequest; that the balance of the fund should be distributed, one-third to the surviving husband 'and the remaining two-thirds to the daughter, Abba M. Sherman, as provided by §§ 75, 76 and 77, 2 B. S., 97.
    Application for construction of will on judicial settlement as to a certain fund and 'an alleged advancement to one of the .heirs.
    
      A. B. Ottoway, for executrix, and as special guardial for Abba M. Sherman, heir; H. C. Kingsbury, for Burke L. Sherman, heir, and for George W. Sherman, husband.
   Sherman, S.

The deceased died May 12, 1883. She made her will dated April 17, 1883, -appointing her sister, Elizabeth M. Wright, executrix. She left a husband, George W. Sherman, and, one son, Burke L., of full age, and one daughter, Abba M., a minor, aged twelve years, her only surviving heirs at law and next of kin.

She left various other articles of household furniture and personal property which she bequeathed to her husband, her two children and other relatives.

The executrix of her will has received from the estate of her father, Willis Rojee, a separate fund of $672.88, to which this proceeding relates ; from which there remains after paying funeral expenses and expenses of administration and debts, $530.11, for distribution to the heirs and next of kin entitled thereto.

The counsel for the executrix and Abba M. Sherman, minor, claims that this balance should all be paid to Abba, and that neither the surviving husband of the deceased, or her brother Burke, should receive any of it by reason of an alleged advancement to Burke by the testatrix in her lifetime.

The counsel for Burke L. Sherman and the surviving husband, George W. Sherman, claims that such husband of the testatrix and her said son Burke and daughter Abba, should each receive on distribution herein one-third of said balance.

The will contains this provision: “I having heretofore advanced money to my son, Burke L. Sherman, to a larger amount than I am now able to give to my daughter Abba, and there being a. sum ■of money coming to me from my father’s estate, now deceased, at the death of my mother, which, as I understand, will go to my two said children in equal amounts in case I should die before my mother leaving my two children me surviving, I request my son, Burke L. Sherman, to give his share to his sister Abba, to be used for her education and maintenance.”

By the will of Willis Royce, father of the testatrix, his wife was to and did have the use of this fund during her life. She died subsequent to the death of her said daughter Sephronia.

It would seem and I find that the testatrix died intestate as to this particular fund. She does not undertake to dispose of it by her will, but gives her understanding, as a matter of law, that upon the death of her mother it would go to her two children in equal amounts, and requests that her son Burke, in consideration of her prior advancements to him in a larger amount than she was then able to give to her daughter Abba, should give his share to his sister Abba, to be used for her education and maintenance. This language does not make a bequest to Abba of one-half of the fund or of any part of it; the testatrix was evidently mistaken as to the legal rights of her husband in this fund on distribution, as she was also to the legal effect of her advancement to her son Burke.

The important question to be considered is whether the language of the will and facts here given constitute sufficient proof of an advancement to Burke by his mother, the testatrix, to authorize the court to hold that such advancement was actually made. No oral testimony was given upon the hearing herein bearing upon the question of such alleged advancement, or of any change in the equitable or legal rights of the respective heirs since the date of the will. The learned counsel for Burke did not upon the hearing allege or claim that such advancement had not been actually made, but claimed that circumstances might have changed after the will was made to excuse Burke from complying with the request of his mother to give his share in this fund to his sister Abba for her education and maintenance. Abba was only twelve years old at the time the will was made, and Burke was of full age. If there was such an advancement, as is alleged in the will and not disputed, Abba is entitled to her allowance of it on distribution, notwithstanding the apparent ignorance of the testatrix as to the distribution of estates under the statutes. I am of the opinion that the burden of proof rests upon Burke L. Sherman to show that no such advancement had been made, or that circumstances had changed, avoiding it I do not regard the request of the testatrix to her son Burke as amounting to a bequest, or as of any importance, further than showing the wishes and intent of the testatrix, as Abba, would be entitled to the benefit of such advancement if actually made without such request And it appearing that the fact of such advancement to Burke by his mother in her lifetime to a larger amount than she was able to give to her daughter Abba, is not disputed and appears to be conceded, I find that it was made. In Beebe v. Estabrook, 79 N. Y., 246, the courts say : “ Whether a gift be one designed as an advancement is always a question of intention and is generally presumed when property is received by a son from his father.” Alexander v. Alexander, 1 N.Y. State Rep., 508.

Such presumption is increased in this case where the son, receiving the advancement, was of full age, and the only other heir affected by it is his sister, now a minor, and was only twelve (12) yegrs old at the date of the will. The property consists of a single item of money coming from a single source. The _ account shows a small increase of interest since its receipt, and it is improbable that any further change since the will was made as affecting the rights of the several persons interested therein. Story’s Eq. Jur„ §§ 1202 to 1204; Welton v. Divine, 20 Barb., 9; Sanford v. Sanford, 5 Lansing, 491; Proseus v. McIntyre, 5 Barb., 4241 Partridge v. Havens. 10 Paige Ch., 618; §§ 75, 76, and 77, 2 R. S., 97.

I direct decree that Abba M. Sherman is entitled herein on distribution of such fund of $530.11 to two-thirds thereof, and that said George W. Sherman is entitled to the remaining one-third of same.  