
    Case 8 — PETITION EQUITY
    Feb. 28.
    Duncan’s trustee v. Clay, &c.
    APPEAL PROM LOUISVILLE CHANCERY COURT.
    1. A PARTITION MADE BY COMMISSIONERS SHOULD NOT BE DISTURBED, it appearing that they made an actual examination of. each piece of realty, and were guided in their investigations by the title papers and not hy erroneous memoranda filed with the pleadings.
    2. A GIPT TO A DEVISEE BY THE TESTATOR APTER MAKING HIS WILL disposing of his entire estate — it not appearing hy parol or other evidence that the gift was intended as a satisfaction, in whole or in part, of the devise — is not chargeable against the devisee as an advancement or ademption or satisfaction, in whole or in part, of the devise.
    3. The first clame of sec. 17, chap. 106, Revised Statutes, Title Wills, was intended to place devisees or legatees, to whom the testator does not stand in the relation of parent, upon the same footing with children or grandchildren, and to change the common law to that extent.
    
      The latter clause further changes the common law so as to apply certain gifts to the satisfaction of devises or legacies, whether specific or general, and whether for a fixed or an uncertain sum. But this provision does not control, unless it can be made to appear, from parol or other evidence, that the testator intended at the time it was made it should be deemed a satisfaction, partial or entire, of the devise or bequest contained in the provisions of the will.
    B. H. DUNCAN eor appellant.
    1. The testator having disposed of his whole estate by will before making the gift to appellant, it was not and could not be considered an advancement, nor was it made in satisfaction of any part of the devise to him by the donor.
    Sec. 17, of chap. 106, Title "Wills, Revised Statutes, can be taken as more clearly construing the effect of sec. 17 of the chapter on Descent and Distribution.
    “ An advancement is an irrevocable gift by a parent, who afterward dies intestate, of the whole or a part” of his estate. (Williams on Ex’rs, note 1, p. 1349, Am. Ed.) Advancements depend upon the “intention of the grantor at the time the conveyance is made.” (Red. on Wills, pp. 908, 909.)
    The rule in Kentucky that wills take effect from the death of the testator may be summed up as in Kreider v. Boyer (10 Watts, 54.)
    There was no ademption in this case. (Wms. on Executors, 1350; 2 Red. on Wills, pp. 526, 538, 540; Dugan v. Hollins, 4 Md. chap. 139.)
    Ademption only tabes place where a parent bequeaths a legacy to a child, and afterward gives a portion to the same child, which is ejusdem generis. A house and lot is not ejusdem generis with a pecuniary legacy, and can not adeem it. (Swoop’s Appeal, 3 Casey, 58.)
    2. “In no case could the declarations of the testator be proved for the purpose of establishing his purpose of adeeming the legacy in his will, by means of subsequent portions advanced . . . except such declarations as he made at the time of making such advancement, and with a view to give character to the transaction.” (Redfield on Wills, pi 540; 17 Vesey, 435, S. C.; 2 Mer. 23; Rogers v. French, 19 Ga. 316; Beale v. Blake, 19 Ga. 119; Ford v. Ford, 3 Foster, 212; Jones v. Mason, 5 Rand. 577.)
    “The declarations of the testator made at any other time than contemporaneously with the advance would not be admissible.” (Kirk v. Eddows, 3 Hare, 509.) Mere surmises will not establish an ademption. (Clarke v. Clarke, 17 B. Mon. 706.)
    The case of Grigsby’s ex’or v. Wilkinson, &c. (9 Bush, 91,) deciding that a devise was not adeemed or satisfied by a subsequent advancement is conclusive of the questions involved in this case.
    W. R. Thompson and R. J. Elliott are marked on same side, but their briefs are not in the record.
    
      BARRET & BROWN for appellees Olay and wife.
    If a party objects to a commissioner’s report be must do so in tbe form of exceptions before confirmation. Tbe failure of appellant to except before confirmation concludes bim as to tbe partition report of tbe commissioners.
    D. M. RODMAN for appellees Kennedy and wife.
    1. Appellant is precluded from making any objection in this court to tbe confirmation of the commissioner’s report, because be failed to file any exceptions thereto in tbe court below. (Collins v. Champ’s heirs, 15 B. Mon. 128; Smith v. Byers, MS. opinion, March, 1876; Civil Code, secs. 367, 767.)
    2. Tbe advancement of the $6,166.50, made by tbe testator John L. Martin to tbe appellant, was made to bim in part satisfaction of tbe devise to bim, and is properly chargeable against bim, under sec. 17, chap. 106, Title Wills, 2 Stanton’s Revised Statutes, p. 461.
   CHIEF JUSTICE LINDSAY

delivered the opinion of the court.

No sufficient reason is shown why the partition made by the commissioners should be disturbed. They were not misled by the misdescriptions of the property contained in the record. They made an actual examination of each piece of realty, and were guided in their investigations by the title papers, and not by the memoranda filed with the pleadings. Further than this, the correctness of the various appraisements and valuations is sustained by the preponderance of the evidence.

But it was error to charge Blanton H. Duncan with the $6,166.50 given him by the testator in 1854. By the last will and testament, published in 1852, the testator disposed of his entire estate. This sum could not therefore be charged to Duncan as an advancement. The devise to Duncan was one fifth of the estate of which the testator died seized. It was not a specific devise nor a general legacy for a fixed and certain sum.

The will took effect as if it had been executed immediately before the testator’s death, and provided that Duncan should take as devisee one fifth of the estate then owned by him. Á bequest or devise thus uncertain in amount would not, by the rales of the common law, be adeemed or satisfied in whole or in part by a gift made by the testator during his lifetime, even if the devisee or legatee was a person to whom he stood in the relation in loco parentis, and the portion or advancement ejusdem generis.

In the case of Grigsby’s ex’r v. Wilkinson (9 Bush, 91) the testator gave to his daughter two slaves after the publication of his will; and in considering the question as to whether the gift should be treated as part satisfaction of the devise to her, this court said: The devise to Mrs. Wilkinson is not specific, nor is it a general devise of a fixed amount. It is one fifth of the residue of the testator’s estate after satisfying the provision for his wife and paying his debts and funeral expenses. Its amount was necessarily uncertain, and an examination of the cases of Farnham v. Phillips (2 Atk. 216) and Freemantle v. Banks (5 Vesey, 513) makes it perfectly plain that by the rules of the common law such a legacy to a child or grandchild is not adeemed or satisfied by an advancement by the testator during his lifetime.”

But it is claimed that the 17th section of chapter 106 of the Revised Statutes controls this case, the will having been published and the gift made after their adoption. Said section is in these words: “A provision for or advancement to any person shall be deemed a satisfaction, in whole or in part, of a devise or bequest to such person contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he is a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended.”

The first clause of this section was intended to place devisees or legatees, to whom the testator does not stand in the relation of a parent, upon the same footing with children or grandchildren, and to change the common-law rule to that extent. The latter clause further changes the common law so as to apply certain gifts to the satisfaction of devises or legacies, whether specific or general, and whether for a fixed or an uncertain sum. But this provision does not control unless it can be made to appear, from parol or other evidence, that the testator intended, at the time it was made, it should be deemed a satisfaction, partial or entire, of the devise or bequest contained in the previous will.

It is not specifically averred in the cross-petition of Kennedy and wife that the testator intended to satisfy in part the devise to Duncan by the gifts in question. The substance of the averment is, that the testator announced to his intended executors his intention to divide $50,000 between his five descendants, that he paid $6,166.50 to Duncan pursuant to such intention, and died before he could complete the advancement to him of $10,000, and before he paid any thing to the other four descendants.

It is also alleged that the testator intended the $50,000 to be a provision for and an advancement to his five devisees, and as their portion or settlement for life, and as satisfaction in part of the devises to them contained in the then existing will.

It is not directly averred that the testator intended to give to each of his five devisees the sum of $10,000. The statement is, that he announced to his intended executors that such was his intention.

But treating the averments as sufficient in law, they are denied by Duncan in his reply, and a careful and laborious examination of the extended record before us has failed to disclose “parol or other evidence” sufficient to make it reasonably appear that the gift was intended as a satisfaction in whole or in part of the devise to Duncan.

That the testator expected, during the continuance of his life, to make gifts to his five descendants, according to his convictions of propriety, we do not doubt; but the proof does not show an expectation on his part that these gifts should be accounted for by his devisees, and treated by the courts after his death as advance payments on the devises contained in his will. His fortune was large and his income greatly in excess of the reasonable wants of his family, and it is not to be supposed he intended the distribution of comparatively small sums of money among his five grandchildren and great-grandchildren should modify or change the provisions of his carefully-prepared will, and devolve upon the courts the duty of inquiring into such of his transactions with his devisees as he did not regard of sufficient importance to make the subject of note or memorandum.

The judgment of the court sustaining the partition of the estate is affirmed; but the judgment charging the appellant Duncan with the gift of $6,166.50 is reversed, and the cause remanded with instructions to dismiss so much of the cross-petition as relates to that subject.  