
    Clara A. Bowran et al., Plaintiffs, v. Sara H. Kent et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1906.)
    Wills — Interpretation and construction — Ademption, revocation and satisfaction — Effect of prior contract for “advance”.
    Where a niece of testator’s wife, brought up in his family, withdrew her objections to the probate of his will giving all his estate to his widow, except a trust for $25,000, upon the agreement of the widow to place that amount in trust to her own use for life, the principal, upon her death, to be paid to the niece if living or to her issue per stirpes, which agreement further provided that, in ease upon the decease of the widow any share of her estate should pass to her niece or her issue, the value or benefit of said trust to the niece and her issue should be treated as “ an advance upon the account of said share and reckoned accordingly and where the widow by her will, subsequently executed, in which no reference is made to said agreement, leaves one-fifth of her property in trust for said niece with remainder over and, owing to the lapse of a trust provision as to another one-fifth, two-fifths of the estate passes under her will “to the same person or persons and in the same shares and proportions as by the laws of the State of .New York would inherit real estate from me in case I died intestate ”, and the .niece, by reason of the death of her mother, becomes one of the heirs at law of testator’s widow and legatee under her will of two forty-fifths of the real and personal estate, she is entitled to receive such share undiminished.
    
      ■A contention that the niece should bring into hotchpot the $25,0.00 .received -under the .agreement and should receive the said two forty-fifths as thus constituted is untenable, as the effect of the .clause Jn the agreement treating said amount as an “ advance ” was negatived by the devise and bequest to the niece.
    Action for the construction of a will. The opinion states the case.
    Augustus 1ST. Hand, for plaintiffs.
    Joseph F. Daly, for defendants Sara H. Kent and others.
    Charles S. Martin, for defendants Benjamin B. .Gottsbage and others.
    J. ¡Noble Hayes, guardian ad litem for Dorothy Kent.
   Blanchabd, J.

This is an action brought by executors to construe a will in respect to the effect of a prior agreement and to ask for an accounting. Upon the death of James H. Banker, in 1885, his widow offered for probate a will leaving to her all his property, except a trust of $25,000 to her for life, with remainders over. The defendant Sara H. Kent, a niece of Mrs. Banker, who had been brought up as a child in the testator’s family, objected to the probate of this will and contended that the real will was another, under which she was given a legacy. Mrs. Kent’s objection was withdrawn., however, pursuant to an agreement made in 1885 between Mrs. Banker and Mrs. Kent, by which Mrs. Banker agreed to place $25,000 in trust to the use of herself for life, and on her death to pay over the principal to Mrs. Kent, if then living, or, if deceased, to her issue, per stirpes. The agreement further provided: In case upon the decease of Mrs. Banker any share of her estate shall pass to Mrs. Kent, or her issue, the value or benefit of the said trust to Mrs. Kent and her issue shall be treated as an advance upon the account of such share and reckoned accordingly.” In 1897 Mrs. Banker made her will, in which she made no reference to this agreement, but left four-fifths of her property in trust, giving one-third of one of said fifths in trust for Mrs. Kent, with remainder over to her issue. Owing to a lapse of a trust provision as to another one-fifth, two-fifths passed according to the will “ to the same person or persons and in the same shares and proportions as by the laws of the State of New York would inherit real estate from me in case I died intestate.” At-the time of making the agreement in 1885, and at the time the will was made in 1897, Mrs. Kent’s mother, one of the heirs-at-law of Mrs. Banker, was living, but in 1899, prior to the death of Mrs. Banker, she died. By reason of Mrs. Banker’s death Mrs. Kent became one of the heirs-at-law of Mrs. Banker and legatee of two forty-fifths of the real and personal estate of Mrs. Banker, under the clause of the will above quoted.' The plaintiffs and certain of the defendants contend that by reason of the agreement above mentioned Mrs. Kent should bring into hotchpot the $25,000 which she has received thereunder • and should receive two forty-fifths of the estate as thus constituted. Mrs. Kent, however, contends that the effect of the clause in the agreement was negatived by the devise, and bequest to Mrs. Kent in Mrs. Banker’s subsequent will.Great stress has been laid by plaintiffs upon the use of the word advance ” in the agreement of 1885. Doubtless, as was said by Johnson, J., in Chase v. Ewing, 51 Barb. 597, 612, the word advance ” more properly characterizes “ a loan or a gift of money advanced to be repaid conditionally,” as distinguished from the word “ advancement,” which designates money or property given by a father to his children as a portion of his estate and to be taken into account in the final partition or distribution thereof.” The word 11 advance ” has been used loosely, however, by the courts to mean “ advancement.” Lawrence v. Lindsay, 68 N. Y. 108. It seems improper, therefore, to restrict the word advance ” in the agreement to the technical meaning stated in Chase v. Ewing, supra. In her will Mrs. Banker directed: “ The remaining one equal one-fifth part of the said residuary estate is by the trustees or executors upon my decease to he paid over and transferred absolutely and in fee to the same person or persons and in the same shares and proportions as by the laws of the State of Hew York would inherit real estate from me in case I died- intestate.” Mrs. Kent, as one of the persons who would have taken in case of intestacy, is clearly one of the class named by the testatrix as the object of her bounty. As was stated in De Caumont v. Bogert, 36 Hun, 382, 391, the effect of the reference to devolution by intestacy was to determine who the persons were who should take under the directions contained in the will and the extent of the interest so to be taken.’’ It follows, therefore, that the testatrix must be regarded as intending a gift to Mrs. Kent with the same positiveness of intention that would have been shown by* specific mention of Mrs. Kent as legatee. It has been held in this State that a subsequent bequest to a legatee, to whom the testator had made an “ advance ” or “ advancement ” upon his or her apportionment ” or portion,” operates to deprive such advance ” or advancement ” of the effect which it has in the event of intestacy, and prevents such advance ” or “ advancement ’•’ from becoming a charge upon the legacy. In Camp v. Camp, 18 Hun, 217, the testator, who had advanced various sums to his ten children and taken receipts rherefor acknowledging such sums as part of the recipient’s apportionment,” in a subsequent will directed his executors to sell his estate and divide the proceeds equally among his ten children. The court held that these advancements should not come into account in the division and said (218) : “ He had provided that if he should die intestate these advancements would be charged to the parties on the distribution of his estate. But he was clearly at liberty to change his intention in that respect, if such had been his intention. And the way to effect such change was to make a will dividing the property of which he would be the owner at his death equally among his children. This he did.” Similarly in Arnold v. Haronn, 43 Hun, 278, the testator had advanced to his daughter a sum which was to be deducted from her part of his estate and to be charged to her portion. In a subsequent will the testator left to this daughter the income of four-fifths of his residuary estate for life. The court held that this advancement should not be deducted from the gift to the daughter. The facts of these cases are indistiuguishable from those of the present case, and upon the authority of these decisions the share to which Mrs. Kent is entitled under Mrs. Banker’s will must pass to Mrs. Kent undiminished. Pursuant to the request of the parties consideration of the executors’ accounts will be postponed until the attorneys for the several parties have had an opportunity to confer in regard thereto.

Judgment accordingly.  