
    Elizabeth Dittoe’s Adm’r v. Miles Cluney’s Executors.
    1. The partial disposition of an estate by will, does not exclude the operation of the statute regulating advancements, in the distribution of the intestate residuum.
    2. A gift to a son-in-law, intended by the ancestor to be charged as an advancement against his daughter, and not subsequently converted by him into a gift absolute, will be so charged against lier in the distribution of his intestate property, if she, knowing the fact and intention of the gift, shall have acquiesced therein.
    3. Such acquiescence may he shown by evidence of express assent, or in- . ferred from facts and circumstances inconsistent with the absence of such knowledge and assent.
    This case originated in the Probate Court of Perry county on exceptions to the final account of the executors.
    The defendants in error are executors under the will of Miles Cluney, deceased, which is as follows:
    “ In the name of the omnipotent Father of all, I, Miles Cluney, of the State of Ohio and county of Perry, do make and publish this my last will and testament.
    “Item 1. I give and bequeath to my grandson, Conrad Litzinger, on his coming of age, the tract of land formerly owned by Jacob Litzinger, deceased, and bounded and described as follows: Being the south half of the southwest quarter section 16, township 16, range 16, containing eighty acres of land, more or less, said pi’operty being situated in the county of Perry and State of Ohio; and the said Conrad Litzinger, on his coming of a go, is to pay to my executors or administrators the sum of $480, a balance due my heirs on said laud, I having already received as payment from himself and his mother the sum of $1,700; and further, should said Conrad Litzinger die without any heirs of his body, the said land to revert to my daughters, "Lucy Cluney, alias Lucy Dittoe, Mary Cluney, alias Mary "Wellan, Elizabeth Cluney, alias Elizabeth Dittoe, and Catherine Cluney, alias Catherine Dittoe. I also give and bequeath to Conrad Litzinger (my grandson) the tract of land purchased from Michael Bnrshue, supposed to contain seventy-five acres situate in Perry county and State of Ohio, subject to the following conditions: Said Conrad Litzinger, on arriving of age, is to pay the dower interest in said land to my beloved wife, Catherine Cluney, and to my four daughters, before mentioned, or their heirs. Should my grandson Litzinger fail in the performance of the fore mentioned condition, said seventy-five acres is to revert to my beloved wife and four daughters and said Conrad Litzinger, all shares as above directed (my wife her dower interest, and my five heirs their just shares); furthermoi-e, said seventy-five acres is not to be sold till said Conrad Litzinger comes of age (twenty one years); but it, together with the other eighty acres above mentioned, is to be leased, the proceeds of the former, arising in the meantime,.to be distributed among the legitimate claimants according to their just dues.
    “Item 2. I desire and ordain that the farm on which I now reside be adjusted and disposed of in the following manner: My wife her dower interest and all other things during her widowhood, and my five heirs their just and legitimate shares.
    “Item 3. I desire that a decent and becoming monument be erected to my memory, and that my said monument just debts, and funeral expenses be paid out of the proceeds resulting from the first sale of my personal property. I desire that two hundred dollars be paid over to St. Joseph’s Literary Society as soon as convenient, say within a year at the furthest. I hereby nominate and appoint George Wellan and Dennis McElroy the executors and administrators of this my last will and testament. I revoke all former wills by me made. In testimony whereof I have hereunto set my hand and seal, this 4th day of March, a. d. 1866.
    my “Miles M Cluney.”
    This will was executed in due form, and Cluney dying on June 21, 1866, it was duly admitted to probate, and said executors duly appointed and qualified.
    On March 12, 1868, George Wellan, as one of the said executors, filed, for settlement in sai'd Probate Court, the executor’s account- upon which the questions arise.
    In this settlement and in this statement, the amount found to distribute, arising out of the personal property not disposed of by the will, is found to be $1,984.21, and Elizabeth Dittoe is charged with an advancement by the words and figures following: “ Elizabeth Dittoe, one of the daughters of said decedent, and her husband, Linus B. Dittoe, having received of his estate to the amount of $1,618.32, or more, the said decedent, on the 28th day of February, 1866, then in life, took from said Linus B. Dittoe, the husband of said Elizabeth, as evidence of the amount so received, a receipt, of which the following is a true copy:
    “Received of Miles Cluney, my father-in-law, 28th of February, 1866, sixteen hundred and thirty-two dollars and thirty-two cents.
    “L. B. Dittos.”
    To this account Mrs. Dittoe excepted. But the Probate Court ruled against her, and held that the amount evidenced by said receipt was an advancement chargeable against her on the distribution of her father’s intestate personalty.
    Mrs. Dittoe then appealed the cause to the Common Pleas, where witnesses were heard, and the evidence embodied in a bill of exceptions. The Common Pleas having followed the holding of the Probate Court, the cause was removed on error by the administrator of Mrs. Dittoe, who had died in the meantime, into the District Court; in which the Common Pleas was affirmed, and the record is now brought here, on error, to reverse the action of the lower courts.
    The record shows that Miles Cluney left intestate personalty for distribution to his widow and five surviving heirs at law; that many years before his death, he conveyed eighty acres of land to Linus B. Dittoe, husband of his daughter Elizabeth, for the nominal consideration of six hundred dollars, taking his note and mortgage deed of himself and wife therefor; and that a few days before making his will, he surrendered to his son-in-law the said note and mortgage, then amounting to fl,613.32, taking therefor, in his account book, the receipt above set out.
    The errors assigned by the counsel of Mrs. Dittoe to the action of the courts below are.as follows:
    “ The court erred in permitting the said Elizabeth Dittoe to be charged with an advancement in said account.
    “The court erred in holding that advancements may be made to a son-in-law.
    “ The court erred in holding that said Elizabeth Dittoe should be charged with an advancement against her share of the personal property set forth in the account, by the conveyance to her husband of land for which were given the notes, the surrender up of which is charged as an advancement.
    “ The court erred in permitting evidence to be offered other than the will of the testator.
    “ The court erred in refusing to sustain the exceptions of said Elizabeth Dittoe to so much of the executors’ account as charged her with an advancement.
    “ The court erred in charging advancement of real estate against the personal property of the decedent for distribution.
    “ The court erred in its finding on the evidence.
    “The judgment, finding, and order were against the law and the evidence.
    
      Lyman J. Jackson, for plaiutiff in error:
    Advancements can not be charged when there is a will. See Needles v. Needles, 7 Ohio St. 432; Thompson v. Carmichael, 3 Sandf. Ch. 120.
    Miles Cluney did not die intestate as to the property on which advancement is charged.
    “ There can be no advancements, except in virtue of the statutes. Putnam's Adm’r v. His Heirs, 18 Ohio, 347; Myers and wife v. Warner et al., 18 Ohio, 519.
    The statute (S. & C. 503) refers only to estates of persons dying “ intestate,” and being in derogation of common law, must be strictly construed. Sedg. on Stat. and Com. Law, 313, et seq.; Benjamin v. Benjamin, 1 Seld. 383. See also sec. 2, Ohio code.
    He is not presumed to have died intestate. Collier v. Collier, 3 Ohio St. 369.
    "We claim that no party dies intestate as to any property he places under the control of an executor, nor, as in this case, where special reference is made to or charge upon the personal property against which the advancement is charged.
    “Evidence can not be received to dispute advancements charged in a will.” Painter v. Painter, 18 Ohio, 262.
    Surely there is stronger reason to reject evidence to charge advancements not named in a will.
    An advancement can not be made to a son-in-law. In re Okey, 1 Bradf. N. Y. Surrogate Court, 1850. Under Ohio legislation since 1861, the intention of a testator, or of an intestate, to give property to a son-in-law, charging it as an advancement under the law to a daughter, would not affect her inheritance; nor would an agreement between the father and the husband. Mrs. Dittoe was no party to the transaction.
    
      W. H. Finch and W. Spencer, for defendants in error:
    Miles Cluney died intestate as to all of his personalty except $200.
    That a person may die testate as to a part of his estate, and intestate as to the residue, is not an open question in Ohio. Bane and another v. Wick and others, 19 Ohio, 328; and again in the same case reported in 14 Ohio St. 505. The statutes regulating descent and distribution of personal estates of intestates apply to all his personalty except the $200.
    The real estate having been disposed of by will, advancements made in personalty can only be adjusted in a settlement of the personal estate.
    The evidence clearly established the intent of Cluneythat the amount received by Dittoe should be an advancement to Elizabeth.
    An advancement can be made to a son-in-law. Needles v. Needles, 7 Ohio St. 432, seems to recognize this doctrine. See also Hicks v. Forrest, 6 Ired. Eq. 528, quoted in 10 U. S. Dig. 12, sec. 5.
   "West, J.

It is material to notice but a few of the points raised on this record by the plaintiff in error.

I. The objection that a partial testamentary disposition of his estate by an ancestor excludes the operation of the statute regulating advancements can not be maintained. The omission to dispose of his entire estate by will, leaves the residuum subject to the statute of distribution as intestate property. Bane et al. v. Wick et al., 14 Ohio St. 507. In the distribution of such residuum, the law of advancements is alike operative, and the right to hear evidence in giving it application is the same as if no part of the estate had been disposed of by will.

II. The securities taken for purchase money, on the sale of real estate, are personalty. The surrender to Linus B. Dittoe of the note and mortgage mentioned in the record, was therefore a gift of personalty. Such gift, if originally intended by the ancestor to be charged as an advancement against his daughter, and not subsequently converted by him into a gift absolute relieved of the quality of an advancement, will be so charged against her in the settlement and distribution of his intestate property, if it appear that she, knowing the fact and intention of the gift, acquiesced therein. In Needles v. Needles, 7 Ohio St. 432, gifts to sons-in-law, supposed to have been originally intended by the ancestor as advancements to his daughters, were held otherwise, oil its plainly appearing that in making a subsequent partial disposition of his estate by will, he had treated them as, and therefore converted them into, unqualified gifts.

III. The acquiescence of the daughter in such case may be shown by evidence of express assent, or it may be inferred from facts and circumstances inconsistent with a waut of such knowledge and assent. "While the evidence embodied in this record is somewhat conflicting, we can not say that it does not warrant the finding and judgment below. We therefore discover no ground for disturbing them, and must order their affirmance.  