
    Emma Whitman, Executrix, vs. Alpha B. White.
    Jury Trial Waived,
    No. 130.
    WILLS : ADVANCES : GIFTS.
    RESCRIPT.
    
      Ezra K. Peor Jeer, for plaintiff.
    
      Eugene H. Lincoln, for defendant.
    
      Filed April 21, 1896.
    
   We think that the testator by the third clause of the codicil to his will, in which he directs a different distribution of his property from that provided in the will, because of the decrease in his property after the will was executed, and because of his larger advances to his children other than the distributees, clearly evinced the intention to treat the so called advances as gifts. In view of these so called advances, he leaves out of the distribution directed by the third clause of the codicil the defendant and other children to whom such larger advances had been made, thereby showing, that, in order to make “a more just division” of his estate, he did not intend that those debts which he termed advances should be paid, but that his other children should have what remained of his property. We think, therefore, that the plaintiff is not entitled to maintain her suit.

Judgment for the defendant for costs.  