
    Walter L. Kent, App’lt. v. Susan W. Hopkins et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    Descent — Advancement.
    Section 23, 1 R. S. 754, refers only to persons who die without a will and does not apply in cases of partial intestacy.
    Motion for a new trial on exception at general term.
    
      J. T. Maren, for pl’ff; Elihu Root, Bronson Winthrop, and Edwin B. Root, for def’ts.
   Brown, P. J.

This action was brought for the partition of real estate among the heirs and devisees of Henry A. Kent deceased. The plaintiff and the defendants Susan W. Hopkins, Francis K. Sanger, and Sheldon L’. Kent were children of said deceased, and the complaint alleged that said deceased made advancements to each of said defendants of the value of $75,000, and made none to the plaintiff. The bill of exception states that on the trial the plaintiff offered proof that such advancements were made to said defendants ; that objection was made to the admission, of such proof, on the ground that said deceased left a will by which he disposed of one undivided quarter of his estate; and that the advancements were therefore not to be taken into áccount hi the division among his children of so much of his real estate as was undisposed of. The fact that the deceased left a will having been admitted by the plaintiff, the objection was sustained, and the proof excluded, to which ruling the plaintiff took an exception.

The question presented is whether section 23 and 24 of the statute of descent are applicable to a case where a testator has disposed by will of only a portion of his estate. The sections are as follows:

“Sec. 23. 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 tobe distributed to the 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.
“Sec. 24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much-only, of the personal estate, and to inherit so much only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.”

1 Rev. St. pp. 754, 755.

This question was decided in the negative by Judge Sanford in 1845 in the case-of Thompson v. Carmichael, 3 Sandf. Ch. 180, and the reasoning of that case commends itself to our judgment-. The appellant contends that the word “intestate” is not used in the statute to indicate a person who dies without a will, but one who dies without devising all his real estate, and that the term includes, therefore, a case of partial intestacy. This argument is considered in the case cited. In all the sections preceding the twenty-third the term is used in reference to real estate and to the inheritance therein which is provided for by the particular section in which the term is used. The twenty-third section has reference to a new subject, and its provisions relate to personal estate as well as real; and the term “an intestate” describes one of a class of persons who-in their lifetime have made advancements with which the section deals, and the word is used in its legal and popular sense to indicate one who died without a will. The purpose of the statute was to make equality of division in the distribution of an estate when no disposition was made by will. But, when a person who has-made advancements to his children makes a will, he is presumed to make his will with reference to his advancements, and the two acts represent his'intention with reference to the disposition of his estate. The injustice which the statute would work if applied to cases of partial intestacy is pointed out by Judge Sanford in the case cited, and is aptly illustrated in the brief of Mr. Charles O’Connor. Nothing need be added to the opinion in that case. The construction there put upon the statute is in harmony with the decisions in other jurisdictions, many of which are cited in the opinion. Others to the same effect are cited upon the briefs of defendants’ counsel. No other reported case in this state has ever given a contrary interpretation to this statute. The decision has stood unchallenged for half a century, and is cited with approval by all the text writers upon the subject. In our opinion, it correctly interprets the statute.

The judgment must be affirmed, with costs.  