
    Younce et al. v. Flory.
    
      Equity will not reform a will, when — Book charging advancements to children — Parol evidence as to same, not admissible, when.
    
    From the familiar rule that a court of equity will not reform a will, it results that when a testator clearly expresses the intention that his property shall pass to his children equally, subject to charges against them in his book of advancements, parol evidence is not competent to show that an advancement charged by him in such book was not made.
    (No. 9904
    Decided October 22, 1907.)
    Error to the Circuit Court of Miami County.
    The parties to the suit are the exécutors of the last will of Larkin Younce, deceased, and his children and legatees. Mrs. Flory, the defendant in error, brought suit against the plaintiffs in error in the court of common pleas praying for a construction of said will and especially for the cancellation of an item of $2,850 charged against her in a book of advancements explicitly referred to in said will. Fler petition alleges the due execution of the will and its admission to probate. It exhibits a copy of said will, of which the fourth item is material to the case. That item is as follows :
    “Item 4. I will to each of my children an equal share in my estate subject to the charges against them in my book of advancements, and to the following provisions as to my son John.”
    The petition further alleges that no advancement had been made to her by her father and that he, in consequence of feebleness resulting from age, had regarded certain real property belonging to his first wife, who was the plaintiff’s mother, as a part of his estate, and that a deed of his life estate therein which he had many years before made to Mrs. Flory’s husband at her request, was an advancement, and that in consequence of such mistake she had been charged with the item which she now seeks to have cancelled. A demurrer to the petition was overruled, and upon a denial of these allegations the court upon the evidence made the following finding:
    “And thereupon the court, after hearing the evidence, argument of counsel and due consideration does find, adjudge and decree that it was the true intention of said decedent, Larkin Younce, to secure an equal distribution of his estate among his children as indicated by the terms and conditions of said will. And the court does find from the evidence adduced, that said plaintiff, Millie Flory, never in fact received said sum of $2,850 or any part thereof, charged to her as an advancement. And that to charge the said Millie Flory the said'sum of $2,850 as an advancement would work an unequal distribution of the estate of Larkin Younce, deceased, and would be contrary to the true intention and conslaruction of his said will.”
    It thereupon adjudged that the executors should in the distribution of the estate of Larkin Younce disregard said charge in his book of advancements and pay to Mrs. Flory her full share of said estate as though said charge had not been made against her. This judgment was affirmed by the circuit court.
    
      Mr. A. F. Broomhall and Mr. W. S. Kessler, for plaintiffs in error.
    Where, in his book of advancements, a testator charged one of his children with $2,850 without actually making the advancement; and it appeared from the language of the will that it was the intention of the testator that the charge should stand and the child's share be modified accordingly; such charge has the same effect as if the will had provided that that particular child should receive $2,850 less than the other children. The courts can not disturb the charge in the book of advancements merely because the money had not actually been advanced. The intention of the testator must control. Painter v. Painter, 18 Ohio, 247; Musselman’s Estate, 5 Watts (Pa.), 9; Hoak v. Hoak, 5 Watts, 80; Thornton on Gifts and Advancements, Section 599.
    The petition in this case was filed upon exactly the same theory as the Painter case, viz.: that the testator was enfeebled in mind and made a mistake when he charged the $2,850.
    The remedy of the defendant in error in the case at bar would have been to set aside the will, if the allegations of her petition are true.
    If a will declares what shall be considered an advancement, then no evidence is admissible to in fact show that it was not. If the will is clear, then no resort can be had to parol or other evidence to determine what is or is not an advancement; for that is fixed by the will, and is to be determined solely by a construction of its terms. Thornton on Gifts and Advancements, Section 599.
    
      Mr. J. A. Davy, for defendant in error.
    The issue in this case is not upon the devise, .but upon the subject of it. The authenticity of the book and the amount and validity of the charges found in it are open to controversy between the executors and devisee; .and the authenticity of the book, and the charges therein can be ascertained and settled by extrinsic evidences, adducible by the said executor or the said devisees.
    In tendering such evidences absolutely nothing is offered in explanation of the will or in addition to it; but in perfect harmony with the will; because the will itself, and the known and expressed intention of the testator was first above all things, that an equal distribution of his estate be had.
    The following authorities are submitted supporting the above proposition: Musselman’s Estate, 5 Watts (Pa.), g; Hoak v. Hook, 5 Watts, 80.
    In the case at bar the book was not probated as a part of the will; presumably it was expected by the testator that his executors would receive proof.
    First, as to what book was referred to; whether it was the book of Larkin Younce or not.
    Second, whether or not the amount charged therein had been received by his several heirs, or if they had been received, whether or not they had been paid back. And any and all other testimony throwing light upon the same for the purpose of securing his intent, namely, the equal distribution of his estate. Woerner on Advancements, Sections 1222, 1223; Rockel Complete Ohio Probate Practice, Vol. 1, Sections 930, 931, 932, 933, 934; Thornton on Advancements, Sections 592, 593, and the large number of authorities cited in Thornton and in notes on pages 582 and 583; Painter v. Painter, 18 Ohio, 247.
   Shauck, C. J.

If the cause were for determination here upon the effect of the evidence to establish an advancement to Mrs. Flory without regard to the provisions of the will, we might reach the same conclusion that was reached in the court below. But that the defendant in error was not entitled to the relief awarded her becomes apparent when the real character of her suit is considered. It was not a suit to set aside the will of Larkin Younce because of testamentary incapacity, for that is not the prayer of the petition, and the validity of the will is conceded. Nor is it a suit by persons occupying a trust position for the direction of a court of equity respecting their duties under an instrument of doubtful meaning, for the will exhibited is entirely free from ambiguity and no doubt as to its meaning is alleged. In substance, Mrs. Flory’s suit was for the reformation of her father’s will because of an alleged mistake affecting the provision in her favor by charging her with the second item entered in his book of advancements. The testator’s book of advancements was regularly kept and unmistakably identified. The item in question was charged against her therein by his express .direction and in his presence, and by the clear terms of the fourth item of the will the devises to all of his children were made subject to the charges against them in the book of advancements. The diminution of the gift to Mrs. Flory by the amount of the item charged would not have been more certain if the provision in her favor had been “I give to my daughter Millie an equal share of my estate with my other children but subject to an advancement of $2,850 which I have made to her.” In the judgment under review and in the argument here offered in its support there is a manifest denial of the effect of a clearly expressed testamentary intention. Whether the item in question would properly be regarded as an advancement if Larkin Younce had died intestate is quite apart from the question presented. The clear expression of the testator’s intention that the item charged shall be treated as an advancement is conclusive with respect to that question. It is sufficient that when engaged in the exercise of- his unquestioned power to dispose of his property as he desired, he chose to treat this item as an advancement and to devise to her an equal share of his 'estate diminished by that amount. The case is within the elementary rule that although courts of equity will hear such parol evidence as may aid them in construing a will, they will in no case reform a will. These views are in accordance with Painter v. Painter et al., 18 Ohio, 247, where-the general subject is treated at length. Judgments of the circuit and common pleas courts reversed and judgment for the plaintiffs in error.

Reversed.

Price, Crew, Summers Spear and Davis, JJ., concur.  