
    Jonathan Bemis and Mary his Wife, in her Right, and Others, Petitioners, &c. versus William Stearns and Others.
    Advancements of personal property are to be deducted from the distributive shares of the personal estate of an intestate, belonging to the children advanced, if such shares are adequate thereto.
    If, upon a petition for partition, it should appear that the parties claim by descent from the same ancestor, and that advancements had been made to some of the parties, not yet settled in the probate office, this Court is not thereby ousted of its jurisdiction in the case.
    This was a petition for partition of the real estate of Samuel Steams, deceased, intestate; the petitioners being the daughters, and the respondents the sons, of the deceased ; and it was entered in this Court at this term, being the same process which was referred to in the case of Stearns fy Al. vs. Stearns &f Al. [Ante, page 167.]
    The respondents, in their plea in bar to the petition, [ *201 ] * allege substantially, that advancements were made by the intestate to the several female heirs, in whose right Ine petition was instituted; and they infer, as matter of law, that there can be no partition, until the amount of those several advancements has been deducted from each share of those who have been thus advanced.
    The petitioners reply, that the intestate died possessed of personal estate more than sufficient to pay all the debts and charges of administration ; besides leaving enough for a distributive share to each of the heirs, after allowing and satisfying all the advancements, which are averred in the plea in bar to have been made.
    To this replication there is a special demurrer; and the causes assigned are, 1. That the petitioners do not, in their replication, admit that advancements were made, as alleged in the bar. 2. That they do not show the amount of debts and charges. 3. That they do not state, in the replication, whether the sums advanced were to be taken out of the real or the personal estate of the deceased.
    The petitioners joined in demurrer.
    
      Ward and Hilliard., for the respondents,
    argued that in the division of the estates of intestates, where advancements had been made, the probate courts should have exclusive jurisdiction ; and they referred to their argument in the former case, for the grounds of this position In the present case it is alleged that there is personal estate to equalize the advancements, without taking them into consideration in the division of the real estate; and if this is well alleged, it must be taken for true upon the demurrer. But it seems to be the in ten tian of the statute from the arrangement of .the words, that the advancement shall be first charged on the real estate, if the portion of the person advanced shall be sufficient; or at least that the real and personal estate shall be considered together, as constituting one fund for this purpose . If either of these be the true construction of the language of the statute, * partition can [ * 202 ] ' only be made, in the present case, under the authority of .the Probate Court.
    
      Stearns and Bigelow, jun., for the petitioners,
    contended that the intention of the legislature most probably was, that advancements of real estate should be considered in the division of the real estate, and those of personal property in the distribution of the personal estate, of the deceased. Where there is a sufficient amount of personal estate to equalize the shares, and the advancements have been of chattels only, it is absurd to alter the descent of the real estate to the heirs, on account of such advancements.
    But if the real estate is to be charged with these advancements, it is not necessary to send the parties from this to the Probate Court, to obtain a partition ; since this Court may, upon a hearing of the parties here, adjust all the claims; and their warrant may be so formed as to produce the same effects, as could be had in the Pro bate Court. It can never be the policy of the law, to enlarge the jurisdiction of the Probate Court over real estate; seeing that court lias no jury for the ascertaining of facts.
    
      
      
        Stat. 1805, c. 90, § 3.
    
   Parker, C. J.

We think the replication is sufficient in point of form; and the general question in the case is, whether the fact “verred of there being a surplus of personal estate, sufficient, after paying debts and charges, to leave a distributive share to each of the daughters, after charging them with the whole amount of the advancements, is a good answer to the plea in bar. And we think the replication sufficient in this respect.

The statute does not require that the advancements should be accounted for out of the real estate, either in whole or in part, if there be sufficient personal estate. For although, by the words of the statute, such advancements are to be charged against the share of real and personal estate, to which the party advanced may be entitled by the rules of descent and distribution, we presume nothing more was intended, than to make both liable, in case [ * 203 ] either should be deficient. But we apprehend * it is always proper to charge the advancement, if made in money or chattels, first against the personal estate. For it is in the nature of a debt due to the estate, which, if it can be paid by money already in the hands of the administrator belonging to the heir, ought to be so paid; rather than to diminish the inheritance of the heir, who may have been advanced, for the benefit or convenience of other heirs, who may desire a larger portion of the real estate than would otherwise descend to them.

Some stress has been laid upon the collocation of the words in the section of the statute, which provides for the deduction of the value of an advancement from the distributive portion which may belong to the heir. But the collocation clearly has reference only to the foregoing words in the sentence, which provide that any advancement in real or personal estate shall be so deducted. No intention of the legislature, to charge the advancement first or altogether upon real estate can be inferred from any thing in the statute itself.

But it has been objected that the courts of common law have no rrisdiction over the estate, so as to sustain a petition for partition; if it appear that the parties claim by descent from the same ancestor, and there should have been advancements to some of the parties not yet settled in the probate office; but that the probate courts can alone order partition in such case. We considered it as settled in the former controversy between these parties, which came up by appeal from a decree of the judge of probate, that this Court, as a court of law, and the Court of Common Pleas for the county, had jurisdiction of the subject matter, concurrently with the judge of probate ; and that the petition having been presented to the Court of Common Pleas, before the proceedings were instituted in the Probate Court, the former Court could not be ousted of its jurisdiction It was decided in the case alluded to, that if, in the course of proceedings upon a petition, it should be suggested that advancements had been made, which ought to reduce the * purparty of any of the heirs, the court of law might [ * 204 J stay proceedings, until the question of advancement should be settled in the Court of Probate. This would probably be the most convenient course; although we are not satisfied that it is necessary. For at present we see no reason, why the whole matter cannot, under proper pleadings, be settled in a court of common law; the advancement amounting in substance to a reduction of the share of the party who may have been advanced, or taking away the whole of the share, according to the value of the property advanced . At any rate, we think there can be no reason for turning these parties back into the Court of Probate ; when, by the facts now appearing in the pleadings, the advancements ought not to have any effect upon the share each is entitled to in the real estate.

Judgment for partition. 
      
       [Vide Stearns vs. Stearns, ante, 167. The most convenient and best remedy m such a case might he had in a court of chancery.—Ed.]
     