
    Langdon v. Astor’s Executors.
    A testator cannot, in his will, reserve a right to qualify, by an unattested writing, a transaction which, at the time of such writing, shall have already passed and taken effect, or which was the act of another person, so as by means thereof to affect legacies or other provisions in his testamentary papers. He cannot alter his will otherwise than by an instrument attested in the same manner as required to give It effect as a will. A testator may, however, make his testamentary gifts dependent up'on the happening of any event in the future, whether in his lifetime or afterwards. He may, therefore, provide that a legacy shall not be payable, if in his lifetime he shall give to the legatee an amount equal to such legacy; and he may add to the condition the further requirement that any advancement he may make shall, in order to be applied on account of the legacies, be charged to the legatee on his books of account.
    Such entries, made in the usual course of business, and at the time of parting with the subject of the advancements, are parcel of the res gestee, a feature of the transaction itself. Otherwise of an entry which might be made relating to a gift to the legatee by a third person; such a gift being res inter alios, and not having in its own nature any operation in regard to the testator and his proposed testamentary provisions, the testator can give no effect to it, by way of qualifying his own bequest, by an unattested writing.
    The testator, by the second codicil to his will, which was executed primarily, January 9th, 1839, bequeathed to his daughter, the plaintiff, the income óf $100,000, deposited in the New-York Life Insurance and Trust Company, and bearing interest at five per cent per annum, to receive (directly, or, in a certain event, through the intervention of trustees) the income during her life; and the capital, after the plaintiff's death, was to go to six of hei children, or such of them as should survive the testator. By a prior codicil to his will, which, hy its terms, was made applicable to any subsequent codicil, the testator declared: “ forasmuch as I may malee advancements, or beneficial provisions for persons or purposes provided for in my will and codicils, it is my direction that such advancements, if charged in my books of account, shall be deemed so much on account of the provision in my will or codicils in favor of such persons or purposes." On the 19th of August, 1839, the testator assigned to William B. Astor, in trust for the plaintiff, a certificate of the deposit by him with the New-York Life Insurance and Trust Company of $100,000, bearing interest at five per cent, and on the same day such certificate was surrendered and a new one taken out, hy which the company acknowledged the deposit of the like sum by William B. Astor, in trust for the plaintiff, and, in the event of her death, in trust for her surviving children named, and being the same children mentioned in the second codicil, . On the next day the testator caused entries to be made in his books of account, charging “ William B. Astor, in trust for Mrs. Langdon” (the plaintiff), with the certificate last mentioned as “transferred to him in trust, as property left to Mrs. Langdon in similar terms by a codicil of my will;" the entries further stated the interest of Mrs. Langdon in the income, and of her six youngest children or the survivors in the principal. At a subsequent date the testator made entries in his account hooks which imported that the said certificate of deposit had been delivered to Mrs. Langdon, to whom it was charged, with a statement of its “ being property bequeathed to her in similar terms by a codicil of my will,” and of the respective interests in the income and principal, of the plaintiff and her six children, as in the preceding entries made in 1839. The plaintiff had received the income since the transfer of the certificate to her trustee. Upon these facts it was Meld, that the bequest of $100,000 ivas upon condition that the gift should fail in whole or in part if the testator should make an advancement to the plaintiff of the whole or a portion of the sum bequeathed, and should at the same time indicate by an entry in his books, made in the course of his business, that the advancement was on account of the legacy; and that the legacy was not payable after the testator’s death, because the condition had occurred which, pursuant to the express provisions of the will, defeated such legacy.
    Regarding the legacy as absolute and not conditional, and as not specific hut pecuniary and general, it was adeemed and satisfied in the testator’s lifetime. Whether an advancement shall he deemed a satisfaction of a particular legacy is a question of fact, to be determined by reference to the intention of the testator; and the express provision of the will, that a gift which is to have the effect of ademption will be found entered in the testator’s books of account, makes such entry the highest evidence of his intention.
    By his will, executed July 4, 1836, the testator bequeathed to the plaintiff, his daughter, the income of $100,000 “ of the debt of the city of New-York, bearing five per cent interest,” for her life, and, on her death, he gave the same “ to her then surviving issue, and their executors and administrators.” By the second codicil to his will, executed January 9,1839, he bequeathed to six of the children of the plaintiff, therein named (being the same six to whom the remainder in the $100,000 deposited with the New-York Life Insurance and Trust Company was given by the will, as above mentioned, and not including all of her children), or to such of them as might survive him, $100,000 “ of the public debt of the city of New-York, bearing five per cent interest, usually called the water loan.” The will contained a provision that, “ in case any of the stocks or funds therein specifically bequeathed should not be in the testator’s hands at his decease, the several bequests should be made up by purchases, at the expense of his estate, of similar stock or funds and to the same amount.” The provision of the first codicil, hereinbefore stated, in respect to the effect of advancements or beneficial provisions to be made by the testator in his lifetime, was, by its terms, applicable to these bequests in the will and in the second codicil. On the 19th August, 1839, the testator procured the corporation of New-York city to issue a certificate for $100,000 of the water stock of the city, bearing interest at five per cent, to William B. Astor, in trust for Dorothea Lang-don, the plaintiff, and children, on conditions stated in entry in ledger (one of the account books of the city) of the fourteenth instant. That entry stated that William B. Astor took the stock “ in trust for Dorothea Lang-don,” interest payable to her during life, and at her death the stock to go to the following of her children: Louisa Langdon, &c. (naming the same six children named in the second codicil). On the 20th August, 1839, and 30tb November, 1840, the testator caused entries to be made in his books of account, charging first to William B. Astor, as trustee, and afterwards to the plaintiff personally, the abovementioned certificate of water stock, under the same statement as to its being bequeathed to her by, a codicil of Ms will, and as to the interest, in the income and principal thereof, of the plaintiff and her six youngest children (those named in the codicil), as has been above 'stated in respect to the certificate of deposit of $100,000 with New-York Life Insurance and Trust Company. By a sixth codicil to his will, executed by the testator after the advancement and the entries last mentioned, the share of Louisa Langdon in this $100,000 of water stock is taken from her, the income given to the plaintiff for life, and the capital to her other children upon her death.
    
      Held, because the provision of the sixth codicil assumed the legacy given to Louisa and the other children of the plaintiff to be still on foot, and not adeemed or satisfied by the previous advancement and entries, and because the application of the advancement to the satisfaction of the legacy given by the second codicil, and remitting the children to the legacy of $100,000 of the “ debt of the city of New-York,” given by the will, would interpose the life of their mother between the testator’s death and the commencement of the children’s enjoyment of such legacy, and would fix her death instead of the testator’s death as the period for determining who among the children are to take as survivors, that therefoi-e the advancement must be deemed to have been intended as a satisfaction of the legacy given by the second codicil, and not of that given by the will.
    Whether an advancement by the testator, intended by him to be in lieu of a legacy, but which intention was not made known to the legatee, in a case where the will had made no provision respecting advancements, and the relation of parent and child, either natural or conventional, did not exist, would adeem a legacy, guere.
    
    The satisfaction of a legacy, by an advancement made by the testator in his lifetime, if under any circumstances a revocation of the bequest or an alteration of the will by which the bequest is made, in the sense in which those terms are used in the statute of wills (2 R. 8., 04, 05, §§ 42-48), is not so in a case where the testator has declared in the will itself that the legacy should not be payable in the event of an advancement, to be made and characterized in a specified manner, and that event has happened.
    The doctrine of presumed satisfaction of legacies arising out of the relation of parent and child, discussed by Denio, 0. J.
    The-will of J. J. Astor was proved before the surrogate, by the subscribing witnesses, to have been duly executed December 31,1836; a first codicil January 19, 1838, and a second January 9, 1839. These instruments, together with five other successive codicils, all of which purported to have been executed and attested on the days of their respective dates, were also proved by three attesting witnesses, who are the same persons in the case of each instrument, to have been acknowledged and published by the testator, as his last will and codicils thereto, on the 11th January, 1846, and upon these proofs, all the instruments were admitted to probate as the last will and testament of the deceased; Reid, that the will and codicils were not to be regarded as an entire instrument, executed for the first time on the 11th January, 1845, but that the acknowledgment and renewed attestation which then took place have only the effect of a republication, giving no different operation to the several instruments from that which they would have if they stood upon their original execution, and therefore did not make the will or codicils speak as from the date of the republication, for the purpose of reviving legacies which had been adeemed or satisfied.
    The action was brought in the Superior Court of New-York city, to obtain a direction of that court, requiring the defendants, the executors of the late J. J. Astor, to set apart funds for the satisfaction of two several legacies, bequeathed by the deceased to the plaintiff, his daughter, each being for 'the interest, for her life, of the sum of $100,000. The defence was that both legacies had been satisfied by advances made by the testator, in his lifetime, to the legatee.
    
      The following facts appeared from the pleadings and testimony: Mr. Astor died on the 29th of March, 1848, having executed his will on the 4th day of July, 1836, and eight several codicils at different periods thereafter, the latest of which was dated December 22d, 1843. One of the legacies sought to be enforced was given by the will. By the first clause of that instrument, the testator devised and bequeathed to the plaintiff, who was the wife of Walter Langdon, certain real and personal estate, among which was the income of $100,000 “ of the debt of the city of New-York, bearing five per cent interest,” which he gave to her for life, to be held to her sole and separate use; and on her death, he gave the same, together with other personal property bequeathed to her in the same clause, “to her then surviving issue and their executors and administrar tors.” The other contested legacy was found in the second codicil, which was executed, primarily, on the 9th day of January, 1839, and it was embraced in a clause in the following words: “In consequence of the lamented death of my daughter Eliza [.the wife of Vincent Rumpff], the provisions of the fourth item of my will [in which provisions were made for Mrs. Rumpff] are defeated, and I revoke the said item; and I give the use of my estate near Geneva to Mr. Vincent Rumpff, for his life; and after him, I give the estate to my granddaughter, Cecilia Langdon, and her heirs forever. I give to my daughter Dorothea [the plaintiff] the income of one hundred thousand dollars, deposited in the New-York Life Insurance and Trust Company, bearing interest at five per cent per annum, to take and receive the income thereof, so long during her life as she, or her husband, present or future, or any one claiming under them, shall not attempt to incumber, charge oi assign the same, in whole or in part; and in case of any such attempt, then I give the said income to my executors, in trust during her life, to apply the same to her use, for wnich her own receipt shall be a voucher; and upon her death, I give the said capital sum to her daughters Eliza, Louisa and Cecilia, and to her sons Walter, Woodbury and Eugene, and to such of these six children as may survive me, to be divided equally among them, and to be accumulated, as to the share of each under the age of twenty-one years, for his or her own benefit, and, on their attaining that age, respectively, to be paid to them by my executors; and if any of them shall die before that age without surviving issue, his or her share shall be given to the survivors. And I give to the said six children of my daughter Dorothea, or such of them as may survive me, one hundred thousand dollars of the public debt of the city of Mew-York, bearing five per cent interest (usually called the water loan), to be paid to each on attaining the age of twenty-one years; and the interest of the shares of those under that age to be accumulated for their benefit- until that period; and in case any of them shall die before that age, without surviving issue, then his or her share to. go to the survivors.” It was the $100,000 of deposit in the Life Insurance and Trust Company, above mentioned, upon which the question arose. Besides the six children above mentioned, the plaintiff has, and had at the time of making the will, another daughter, Sarah, their sister, the wife of Robert Boreel, who was' the eldest of her children, and was the beneficiary of a separate devise, contained in the will, of a valuable estate in Broadway, known as the City Hotel. That devise was for her life, with remainder to her issue. The following provision was contained in the eleventh section of the will: “In case any of the stocks or funds herein specifically bequeathed should not be in my hands at my decease, the several bequests shall be made up by purchases, at the expense of my estate, of stocks or funds of the same or a similar kind, and to the amount, at their par values; and in case any of the said stocks or funds should be paid off, or become, in the judgment of my executors, insecure, then it shall be lawful for them to sell and dispose of the same, at the request or with the assent of the person entitled to the income thereof, and to invest the proceeds in such other' safe securities as my executors shall think expedient, and so on from time to time; but no change of the form of investment shall change the right or interest of any person in the increase and proceeds of such property.” By a clause in the fifth codicil, this provision was, in terms, made applicable to all the codicils. The testator gave the residue of his estate, real and personal, to his son, William B. Astor, for life, with a power of appointment among his children, with remainder to his children in default of an appointment. The first codicil, executed January 19th, 1838, contained the following clause : “ In case any devises, bequests or legacies, trusts, powers, conditions, limitations or other dispositions or clauses in my said will, or in this codicil, or in any subsequent codicil, should, for any reason, be deemed invalid (having intended, however, in all things to make them conformable to the law), then it is my will that, in all events, the said will and codicils shall stand valid as to all other parts and provisions, and that no failure of any clause of my will, or the codicils thereof, shall defeat or render void any other parts thereof; and in case of the invalidity of any devise or legacy or other provision, I direct that the property or subject of such invalid disposition shall be given to the person for whose benefit the same appears by the expressions of such defeated clause;»as to which property or subject I authorize my executors to appoint the sums to said person or persons in such estates, manner and proportions as they shall judge conformable to my will, and as shall be lawful; and forasmuch as I may make advancements or beneficial provisions for persons err purposes provided, for in my will and codicils, it is my ■ direction that such advancements, if charged in my books of account, shall be deemed so much, on account of the provision in my will or codicils, in favor of such persons or purposes." This codicil contained a provision that in case the yearly income of the plaintiff, from the stocks and funds bequeathed to her, should fall short of $15,000, the deficiency should be made up out of the residuary estate. If this deficiency in any year should arise out of temporary causes, the sum advanced by the residuary estate was to be reimbursed out of any excess over $15,000 a year that she should afterwards receive.
    By the fifth codicil, bearing date March 3, 1841, and purporting to have been primarily executed at that date, the testator states that he had before him his will and four several prior codicils, the dates of which are correctly mentioned ; and he declares that he recognizes, and publishes them anew, and as forming, with the codicil then executed, his last will and testament. The first and second codicils also contain an express republication of the testamentary papers which precede those codicils respectively. The sixth codicil bears date June 3, 1841. The first five clauses are devoted to revoking and modifying the prior devises and bequests in favor of Louisa, one of the daughters of the plaintiff. (Kane v. Astor’s Executors, 5 Seld., 113.) The third of these clauses is as follows: “ As to the two legacies of twenty-five thousand dollars each and the share of water stock, to which the said Louisa would have heen entitled under my will and a codicil thereto, I revoke the two legacies entirely; and I give the income of her share of stock to my daughter, Dorothea, for life; and on her death I give the capital to her other children, and their issue, in case of their decease.”
    The will and codicils were proved and recorded before the surrogate of the county of ¡New-York, the 12th April, 1848. Each of the instruments purported to have been executed and attested on the day of their respective dates. There is an additional attestation clause to each of them, dated January 11, 1845, signed by three witnesses, who are the same persons in the case of each instrument, setting forth that the testator had, on that day, declared the instrument to be his will (or a codicil to his will), subscribed by him as such, and that the witnesses signed'it at his request. The proofs taken before the surrogate were in evidence, by which it appeared that the will and the first two codicils were proved to have been executed at or about their respective dates, in the presence of the witnesses who primarily attested them; and that the witnesses who subscribed the attestation clause of 1845 proved the will and all the codicils, by showing the declaration of the testator, and the fact of attestation, according to the statute, on that day. The proof of the will and first two codicils, by the primary witnesses, was repeated on the trial of this cause.
    It appeared that city stocks and Trust Company’s certificates, corresponding with the several bequests in controversy, were not owned by the testator at the time of his death.
    The evidence as to the alleged ademption or satisfaction was as follows: The testator held a certificate of the New-York Life Insurance and Trust Company, acknowledging the deposit, by him, of $100,000, for which the company agreed to pay Mm interest at five per cent, and to pay the principal 1st October, 1847. On the 19th August, 1839, he assigned this certificate to William B. Astor, “ in trust for Dorothea A. Langdonand on the same day a new certificate was taken out, upon the surrender of the former one, by which the company acknowledge the deposit of the like sum, by William B. Astor, “ in trust for Dorothea Langdon and in the event of her death, in trust for her surviving children, viz., Eliza Lang don, &c. (naming the six children mentioned in the second codicil.) The certificate, in other respects, was like the one surrendered.
    It seemed probable that this deposit was the same which had formerly been^settled upon Mrs. RumpfF, as a certificate for that amount-had been transferred to the testator by her trustees, after her death, on the 10th January, 1839; and, on the 12th day of the same month, a new certificate was taken out in the name of the testator, which was the one afterwards assigned tc- William B. Astor, as above mentioned.
    On the same 19th August, 1839, the testator procured the corporation of the city of New-York to issue a certificate, ■ for $100,000, of the water stock of the city, bearing interest at the rate of five per cent per annum. It stated that there was due from the corporation, unto William B. Astor, $100,000, “in trust for Dorothea Langdon and children, on conditions stated in entry in ledger of the 14th instant.” The principal was reimbursable January 1, 1858. The ledger entry referred to in the stock books, in the office of the comptroller of the city, was as follows: “ William B. Astor, in trust for Dorothea Langdon, interest payable to her during life, and at her death the stock to go to the following of her children: Eliza Langdon, &c. [naming the same six children], or such of the above named children as shall survive said Dorothea Langdon.”
    The testator, on the 20th of August, 1839, caused an entry to be made in his day-book, the language of which he dictated to his book-keeper, in the following words:
    “New-York, August 20, 1839. “William B. Astor, in trust for Mrs. Langdon, &c., Dr.
    
    “ To Sundries:
    “ For the following stocks transferred to him in trust as pro perty left to Mrs. Langdon in similar terms ly a codicil of my will, the interest on said stocks being payable to her during her life; and at her death, the interest and principal to her six youngest children now living, in equal proportions, or the survivors of them, as they become of age:
    “ To New-York water stock, for amount transferred, per cer tificate, redeemable January 1st, 1858, par,. $100,000 “ To New-York Life and Trust Company’s certificate for do., redeemable Oct. 1st, 1847, — 100,000
    $200,000'
    
      This entry was transferred to the journal, and .finally posted in the ledger.
    On the 23d of November, 1840, the testator caused, in like manner, the following entry to be made in his day-book:
    “ Nov. 23,1840.
    “ Mrs. Dorothea Langdoh, Dr.,
    
    “ To William B. Astor, in trust for Mrs. Langdon, &c., “For the following stocks charged said trust account, August 20,1839, now handed her, being property bequeathed to her in similar items by a codicil of my will, the interest thereon being payable to her during her life; and at her death, the interest and principal to be paid to her six youngest children now living, or the survivors of them, as they become of age, in equal proportions:
    “ Certificate New-York city water stock, redeemable Jan. 1st, 1858, 5 per cent,.................. $100,000 ‘ Certificate New-York Life Insurance and Trust Company, redeemable Oct. 1st, 1847, &c., at 5 per cent,......................... 100,000
    $200,000”
    This entry was, in like manner, carried into the journal and posted.
    On the occasion of the first series of entries, an account was opened in the testator’s ledger, headed “William B. Astor, in trust for Mrs. Langdon and others,” to which the $200,000 was charged. When the second series of entries were made, this account was credited with the same sum “ By Mrs. Langdon,” and a new account was thereupon opened with her, which was charged with the $200,000 “ To Wm B. Astor, in trust.” Corresponding entries were made in the accounts in the testator’s ledger, entitled “New-York Life Insurance and Trust Company certificates,” and “ New-York city water stock, 5 per cents, 1860.”
    The plaintiff gave in evidence a note in the handwriting of the testator, in the following words:
    “ Your certificates of stock are in my iron chest, say $100,000 of city water stock, $100,000 of Life Insurance, &c. They are in the paper which you gave to me.
    “ J. J. A.
    
      “30Hi Nov., 1840.
    “ Your deed for Hyde Park I will send to be recorded.”
    She also.gave in evidence a conveyance from the testator, dated 20th February, 1840, which had been acknowledged and recorded, of certain lands at Hyde Park. It was stated therein that the property conveyed was intended for a residence for his daughter, the plaintiff. It was expressed to be in consideration of love and affection, and of one dollar, and granted the premises to the plaintiff for life, with remainder to five of her children, who were named. It likewise recited an intention to give this property to her and to her children therein named, “ without computing the same as any part of the provision made for them in the testamentary disposition of my estate.”
    It was not distinctly shown what amount of city debt, not qualified as water stock, the testator owned at the time of making his will or afterwards, but the answer stated “that the whole of the city debt (so called by him) was disposed of by him on the 20th day of September, 1844.”
    By the will and codicils, many pecuniary legacies were 1 bequeathed to individuals and charitable and benevolent societies. The defendants produced the testator’s books of account to show, and did show thereby, that in several instances he had paid or remitted to the legatees various sums of money, which were charged in the accounts as being on account of legacies bequeathed to them, and in some instances it was added, “ or which I may hereafte' bequeath to them.” Sometimes it was said to be in fu' for so much “ bequeathed to them in my will.” There wt above thirty items of entries of this character, besides tho which related to the plaintiff.
    Some of the legacies given by the will and early codicils were expressly revoked by those of later date. In some instances, legacies were reduced in amount; and in one case it was stated in a codicil that the testator had advanced $15,697.50 on account of a legacy to a charitable society. The plaintiff gave in evidence a draft of the second codicil, which was produced by one of the defendants. Immediately below the item containing the legacy of $100,000 Trust Company certificates and the $100,000 of water stock, there was another in the testator’s hand, as follows: “ The stock here alluded to has been transferred to Mrs. L. and her children; say $100,000 Life Insurance and $100,000 water stock.” There was also indorsed on that paper in the testator’s writing as follows:
    “ The stock herein given is the same that W. B. Astor holds in trust for Mrs. Langdon and her children.
    “ J. J. Astob. 17th Oct., ’40.”
    Since the transfer of the two sums to W. B. Astor, the plaintiff has received the income thereof.
    The case was tried before the late Judge Sahdfobd, without a jury. He determined that both the legacies in controversy were, so far as the plaintiff was concerned, satisfied and allowed by the advancements referred to in the testator’s books of account, but this judgment was not to affect the rights of the plaintiff’s children, who were entitled in remainder to. the property bequeathed; and that the repubiication of the will and codicils in 1845 did not reinstate these legacies. He further determined that, in adjusting the provision by which the plaintiff’s income from the bequests in the will was to be made up to $15,000 per annum, the income from the water stock, advanced in the testator’s lifetime in lieu of the city debt bequeathed by the will, was to be taken into the account; and that funds should be set apart to secure the performance of that provision, and he directed a reference for that purpose.
    The plaintiff’s counsel excepted to this judgment, and appealed to the general term. The court, at general term, reversed that part of the judgment of the special term which determined that the legacy of $100,000 of city debt, bequeathed by the will, was satisfied; and directed the defendants, who are executors, to purchase the like amount of the same or similar stock. A modification was also made as to that part of the said judgment which related to the deficiency of income. The defendants were charged with costs, to be paid out of the residuary estate; but the court denied the application for an extra allowance under the provisions of the Code. The case in the Superior Court is reported in 3 Duer S. C. R., 477.
    The defendants appealed from so much of the judgment of the general term as reversed portions of the judgment of the special term, and from the part whichawarded costs to the plaintiff; and the plaintiff appealed from the part thereof which affirmed the residue of the judgment at general term, and from the denial of an extra allowance to the plaintiff’s counsel.
    
      Anthony L. Robertson, for the plaintiff.
    
      Daniel Lord, for the executors.
   Denio, C. J.

All the material questions of law, upon which the parties in this case disagree, arise upon the alleged satisfaction of the legacy of $100,000 of deposit in the New-York Life Insurance and Trust Company, bequeathed to the plaintiff in the second codicil of the testator’s will. The advancement made to her by the testator, in his lifetime, was of funds of the same precise description as those bequeathed. The entries in his account books describe the funds accurately, and there is no mistake in the reference to the testamentary paper in which the legacy is found. In regard to the other legacy claimed, there is an important question upon the construction of the language of the entries, as to the bequest to which they refer, which will be subsequently examined. I will now endeavor to ascertain whether the first mentioned legacy has been legally satisfied, so that it cannot be claimed at the hands of the executors.

It is proved that the testator caused to be issued to a trustee, for the plaintiff, a certificate of deposit in the Trust Company, being the usual evidence of ownership of this kind of property, which upon its face expressed a trust in favor of the plaintiff as to the income for her life, and conveyed a vested interest to her six children, mentioned in the bequest, as legatees in remainder. It is not questioned but that this settlement in favor of the plaintiff was a gift, as distinguished from a conveyance upon a valuable consideración. It was voluntary on the part of the testator, and the plaintiff parted with nothing to obtain it. She was passive in the transaction, doing no act but to receive the evidence of the donation and the income of the gift, as it was paid to her by the trustee. She did not agree that it should have any effect upon the testamentary provisions in her favor, and it does not appear that she knew that the testator intended it should have any such effect, or indeed that she had any knowledge that the testator had made a will. It is, however, certain that the testator intended by the settlement not to bestowupon the plaintiff an additional bounty, but to give her, by way of anticipation, and in his lifetime, what he had inserted in his codicil as a legacy in her favor, to take effect at his death. The gift, as he regarded it, was substitutional, and not cumulative. The cotemporaneous entry in his account books states that the transfer was made to her as property left to her in a similar item in a codicil to his will. When he subsequently placed in her own hands the evidence of the fund, and found it convenient in the arrangement of his accounts to debit it to her personally, instead of the trustee to whom it was charged in the first instance, he referred to it as “ being property bequeathed to her ” by a similar item in the codicil. Hot only the amount, but the kind of fund, and the successive estates given to the plaintiff and her children, are perfectly identical with the legacy. I think nothing more can be necessary to demonstrate that the testator intended to satisfy a prior, and not to make an additional gift; but if there were, it would be found in the draft which the testator retained of the codicil, and upon which he wrote that he had transferred to the plaintiff and her children the stock which was the subject of the legacy. This paper was given in evidence by the plaintiff, and is therefore competent against her. There is another feature of the case very material to be considered. The testator did not prepare and execute his testamentary papers in the immediate prospect of death. Several of them contain evidence that he expected to continue in the management of his property, and to add to and modify his testament, as he repeatedly did. As the proprietor of a very large and probably increasing estate, he contemplated making advancements and beneficial provisions, to operate inter vivos, to those having the claims of kindred upon him. His immediate descendants were persons or'mature age, the plaintiff herself having a married child, needing then, if they could hope to enjoy it, the pecuniary means they might reasonably expect to receive from the testator’s bounty. The testator himself took the same reasonable view of the case. He intended not only to modify his testamentary dispositions from time to time, as a change of circumstances 01 ^ hik** tion should arise, but to make gifts in presentí, as he should find occasion, in his lifetime. He might make such gifts by way of addition to those he had set down in his will, or he might advance, by anticipation, the whole or portions of what he had thus set down. He therefore recited in his first codicil that he might make advancements or beneficial provisions for persons or purposes provided for in his will and codicils, and he thereupon directed that such advancements, if charged in his books of account, should be deemed so much, on account of the provision in his will or codicils, in favor of such persons or purposes. This direction looked to future codicils, as well as the one he was then preparing. This will be evident from reading the whole clause. It begins by making certain general provisions, which he declares shall apply to his will, to that codicil, and to any subsequent codicil; and when he comes to give directions respecting advancements in satisfaction for legacies, they are made to relate to legacies given by his will and codicils, in the plural number. The result is that the testator qualified all his legacies and beneficial provisions in all his testamentary papers with a condition, that if he should in his lifetime advance to the legatees, or persons beneficially provided for, the whole or a part of that which he had given them in those papers, and should indicate his intention that such advancements were on account of such legacies or beneficial provisions, by charging the same in his books of account, that then such legacies were to be considered paid and satisfied, in whole or in part, according to the amount of such advancements. There is no principle in the law which forbids the making of testamentary gifts dependent upon the happening or not happening of any event in the future, whether in the testator’s lifetime or afterwards. A bequest may be made with a provision that it shall not be operative if the legatee shall in the testator’s lifetime receive a particular sum of money from another person, or if he shall within that time become entitled to an estate as the heir or legatee of another. So a testator may very properly provide that a legacy given in his will shall not be operative if he shall in his lifetime give the legatee the like sum. This is not the reservation of a license to alter or revoke his will by an unattested paper. The fact which is to destroy the legacy in such a case is not a change of purpose, a new .act of testamentary volition, which requires an instrument in writing clothed with testamentary forms. The gift inter vivos is a fact in pais, which does not require a writing, and the effect given to it, of superseding and extinguishing the legacy, is prescribed by the will itself, and is authenticated in the same manner as the legacy, of which it is in fact a part. It differs, it is true, from a condition which looks to the act of a third person, or the happening of an event in respect to which the testator is to have no agency; and 1 ; concede that a testator cannot prescribe in his will that an j act to be performed by him, indifferent in itself and having j no pertinency except its effect upon his testamentary dispoj sitions, shall change such dispositions. Such a provision i would allow a testator to alter his will otherwise than by Ían attested instrument. He cannot therefore declare that any mere entry in his books, or other writing without attestation according to the statute, shall in itself have any effect upon the provisions of his will. But the bestowal of a substantial sum of money or amount of property is an act of a different kind. It is a pecuniary transaction belonging to the actual business of life. It is an act which he may perform "whether he has made a will or not. It effects a substantial change in the pecuniary condition both of the testator and the donee. No doubt a testator could make it a condition to the validity of a legacy, that his own estate should at his death amount to a certain sum; and yet he might, by gifts inter vivos, as well as in any other way, reduce bis means below the amount expressed. So he certainly might prescribe that a legacy should rot take effect if the legatee should in any manner, before the testator’s death, become possessed of a certain fortune. Plainly, then, he may declare that if he shall himself bestow upon his legatee an amount equal to what he otherwise proposed to give by his will, it shall take the place of the qualified testa-£ mentary gift. Such a provision would not be within any of the mischiefs of a parol or unattested revocation. The qualification of the testamentary gift must, as I have remarked, be attended with all the solemnities of the gift itself. The circumstance which is to determine whether the testamentary gift shall be operative at the testator’s death is, in this case, an act taking effect in presentí, and is one of those transactions of business which every owner of property may perform for its own sake, and without reference to its operation upon any instrument he may have executed. There is nothing in the policy of the law requiring it to be proved by other than the usual evidence. There is no special danger that it may be simulated or set up by false testimony against the truth of the case. Not being promissory or executory in its character, but taking effect as it does eo instanti, with the volition of which it is the result, there is no danger that it may be done without a due appreciation of its character; as testaments, promises and other engagements, looking to the future for their consummation, may be and frequently are. It has not one of the characteristics of a testamentary act, and there is not, in my opinion, anything in the law that requires that it should be authenticated by testamentary formalities. I am therefore of opinion that if this will had simply provided that the legacy in question should not be payable if the testator should in his lifetime give the plaintiff an equal amount of the same stock which the legacy specified, the provision would be a valid qualification of the bequest, and the only material inquiry would be, whether he had made such gift after the execution of the codicil.

But the testator added to the condition the further requirement, that the advancements which he might make should, in order to be applied on account of the legacies, be charged in his books of account. If he might lawfully declare that a simple advancement should satisfy a legacy, he might ! provide that only such as should be made under special circumstances should have that operation. He obviously intended to guard, so far as he might by great caution, against any doubt or uncertainty in carrying out his testamentary provisions. He did not wish to restrain himself from making donations which should be wholly independent of, and unconnected with, the gifts in his will and codicils. If the will had provided that a simple advancement to a legatee should go in satisfaction of the legacy, any subsequent gift made by him„might have that effect, though intended as an additional gratuity. To provide against this difficulty, and to prevent as far as possible any uncertainty which might lead to controversy and litigation, he proposed to put a mark upon such subsequent donations as he did not intend to have considered cumulative. If they should be found charged upon his books against the legatee, they were to be taken, without further proof of intention, to be in satisfaction of the legacy bequeathed to the person to whom they were made and against whom they were charged. If not so charged I do not say that it might not be shown, by reference to the instrument of donation or other competent evidence, that they were given in satisfaction; but if no such proof could be given, I think they would be taken to be donations made in addition to the legacies. The entries alone have no effect upon the bequests. It is the fact of the advancement, taken in connection with the prescriptions of the codicil, which operates to adeem the legacy. But the testator supposed he might make advancements which he would desire to have taken as additional free gifts. Those he would have a right to make, notwithstanding the provisions respecting the satisfaction of legacies. What he intended by requiring entries to be made in his books of account was, to provide a ready means of distinguishing between the two species of gifts. Suppose his will had declared that all future advancements to his legatees should be taken as ademptions pro tanto, unless he'should charge the sums advanced to the account of profit and loss on his books of account, in which case they should not be so considered : would this limitation upon the direction make the whole void, as the reservation of a power to revoke and alter a will ? Or suppose he had said: I intend hereafter in my lifetime to make advancements or beneficial provisions to my legatees, some of which I intend shall be additional gifts, and others anticipated payments of their legacies; the latter I will charge to my legatees in my account books, the others will not be so charged, and I direct that this indication of the intentions with which they are made shall be observed in determining which are further gifts and which are payments : this, I think, would not be objectionable, as the reservation of a power to alter his will by an unattested writing, and it is in effect what this testator has done in the present case. The charges in the account books, which! were in the contemplation of the testator, were such as S' should be made in the course of business, and ccjtemporaueous with the transactions to which they should relate., It is the theory of accounts kept by business men that, when money or property is parted with, the account which represented it when in the testator’s possession should be credited, and some other account charged with the amount. If money is paid out, it is the account of “ cash” which is credited ; and if stocks are transferred, the account which represents the particular kind of stocks ( or stocks generally, if there is but one account embracing all such securities) is credited. Then as to the debit: if what is parted with is given away absolutely, or so disposed of as to be wholly lost to the proprietor, the regular charge is to be profit and loss. If the subject of the entry is to be kept on foot h any purpose, it is charged to the proper person or the appropriate account; and where an accountability is trans ferred from one account to another, it is credited to the former and charged to the latter. It is shown that the testator kept regular books of account; but, without proof, the court would no doubt intend that the accounts relating to his large estate would be kept in the usual manner. The will is to be construed with reference to these well known methods of transacting business. When, therefore, the will speaks of advancements to be subsequently made by the j testator, and of the charging of such advancements in his Í books of account, it must be understood to speak of entries to be made in the usual course of business, and at the time , of parting with the subject of the advancements. Entries thus made are parcel of the res gestee; they are one feature of the transactions. If the matter is ex parte, or a voluntary gift or endowment which does not require any consideration or an undertaking on the other side, and where the only inquiry is as to the intent of the donor, it is of the essence of the thing, and, in the absence of evidence to contradict it, it characterizes conclusively the nature and object of the transfer. It seemed necessary to say thus much to distinguish the entries provided for in the codicil from a memorandum which might be used to declare the intention , of a past transaction. I concede that a testator could not / in his will reserve a right to qualify by an unattested writing I a transaction which had already passed and taken effect, or I which was the act of another person, so as by means thereof to affect legacies or other provisions in his testamentary paper’s. I think this distinction has been overlooked in the remarkably lucid and ingenious opinion of one of the judges of the Superior Court, which, contrary to the views which I entertain, denies any effect to the advancements which were made by the testator in this case. In that opinion a case is put as not in any respect distinguishable from the present A parent, it is supposed by way of example, bequeaths a legacy to his daughter, declaring in his will that any and every sum of money that she may receive during his life as a bounty from any relative shall be deemed so much on account of the provision for her in his will, provided that, by charging the sums so received in his, the testator’s, books of account, he, the testator, shall declare his intention that they shall be applied to reduce the legacy. If, in this case, it is further said, a mere entry in the books of the testator of a sum received as a bounty by his daughter, together with proof of its actual reception, could be held to be pro tanto a valid revocation of the legacy, the defendants in this suit are entitled to prevail, and not otherwise. In the case supposed, the effect on the legacy would he wrought solely by the writing. The gift of the relative would not in its own nature have any operation, as regards the testator and his proposed testamentary provisions. It would be res inter alios and wholly indifferent. The testator could very properly qualify hisJegacy"T>y providing^ that, if his legatee should be thus fortunate, his own proposed bounty towards her should not take effect; but he could not reserve the power of determining by a subsequent unattested writing whether that piece of good fortune should operate as a revocation of his bequest. The testator’s whole will must be expressed in his testament. He may confer bounties absolutely or upon conditions; but he cannot reserve the power to make future conditions by unattested instruments, or to declare that acts indifferent as to his bequests should avail, according to his future pleasure, as a revocation of it. The case supposed would be a plain one of an attempt to dispense with the statute of wills. The case before us is, I think, an equally plain one of a gift upon condition, the condition being that the gift should fail in whole or in part if the testator should make an advancement to the plaintiff of the whole or a portion of the sum bequeathed, and should at the same time indicate by an entry in his books, made in the course of his business, that the advancemert was on account of the legacy.

The case of Habergham v. Vincent (2 Ves., Jr., 204, reported, also in 4 Brown's C. C., 353) is relied upon, in the opinion which I have mentioned, as a commanding authority against the position I am endeavoring to maintain. A freehold estate had been devised to trustees to pay debts and legacies and then to convey to persons named in tail, with several successive remainders in tail, and finally with remainder “ to such persons for such estates and subject to such charges and conditions as the testator should by any deed or instrument with two or more witnesses appoint.” The testator made a deed attested by two witnesses, appointing the remainder to the first son of a certain Richard Hill and his heirs male, &c. It was held, first, that the deed was testamentary in its character, not being intended to take effect until after the testator’s death; and secondly, that it was void from not being attested by three witnesses, according to the provisions of the statute of frauds. The soundness of the judgment upon the second point, which is the only one at all material, certainly cannot be questioned; it being quite plain that a testator cannot reserve to himself in his will the power to create further limitations of his estate by an instrument not-attested according to the statute. The distinction between the case cited and the one under consideration is, that in the former the testator did not express his whole will in the attested paper, but attempted to create a power by his will to do so in the future by an instrument not attested according to law, while in this case the testator exhausted his disposing power as to this legacy in his will; and if it shall be held that it is not now payable, it will not be on account of any new exertion of the testator’s disposing power, but because the event has happened upon which the will itself declared it should not be payable. The foregoing considerations lead me to the confident conclusion that the plaintiff is not entitled to the relief which she asks in respect to this legacy.

But there is another view of this case which leads to the same result. It is that the legacy is adeemed and satisfied by the advancement of the $100,000 of Trust Company certificates. In what I shall have to say upon this question, 1 shall assume that the legacy in question is not specific, but pecuniary and general.

In De Nottebeck v. Astor (3 Kern., 98), we held the legacy of $100,000 of the water loan, bequeathed to the plaintiff’s ehildren in the same terms, so far as this question is concerned, to be a legacy of quantity, with a specific fund, appointed by way of demonstration, for its payment. The legacy in question is not, perhaps, necessarily adeemed because the stock of which it was to consist has been conveyed to the legatee. Clearly, if it had been transferred to her for a valuable consideration, or as a gift intended by its terms to be cumulative, the legacy would not have been affected. The identity, however, of the subject of the gift inter vivos with the legacy is a circumstance of considerable importance, when we are seeking to ascertain the intent of the testator in making the transfer. If without any clause in the will prescribing the effect to be attributed to advancements, the testator had conveyed this stock to the plaintiff, and had not left any evidence of the intent with which it was made on his books, a presumption of fact, of considerable weight, would still have arisen that he intended to satisfy the legacy in question by the transfer. But taking into consideration the clause respecting advancements, and the entries, it is conclusively shown that the transfer in this case was intended to be in satisfaction. It is usually stated that general legacies may be adeemed by advancements made by the testator in his lifetime, and that the question whether a particular advancement should or should not be a satisfaction, or in satisfaction of what the testator had bequeathed to the person so advanced, is a question of fact to be determined only by reference to the intention of the donor. (1 Roper on Legacies, 365.) The soundness of this position will be apparent from a reference to certain well settled doctrines in the English courts of equity. For instance, where a parent, or other person in loco parentis, bequeaths a legacy to a child or grandchild, and afterwards, in his lifetime, gives a portion, or makes a provision for the same child or grandchild, without expressing it to be in lieu of the legacy, it will, in general, be deemed a satisfaction or ademption of the legacy. This is upon the ground that the legacy is considered a portion, and if the testator afterwards advances the same sum upon the child’s marriage, or any other occasion, he does it to accomplish his original object in giving a portion. Under such circumstances, it is held to be intended by the testator as a satisfaction, and not a double portion. (Story's Eq. Jur., §§ 1111, 1112.) The relationship between the testator and the legatee creates a presumption of fact that the advancement was in the nature of payment, and was so intended. (Powell v. Cleaver, 1789, 2 Brown's Ch. R., 499.) In this case, Lord Thublow said: “ With respect to the question of ademption, the case of parent and child is a presumption of evidence only, and not a presumption of law.” The case before him was that of a legacy to a stranger, and it was claimed to be satisfied from circumstances. The lord chancellor said he had gone through all the cases, “ and it appears,” he said, “ to be the result of them that where a stranger gives a legacy by will, and afterwards a sum without any evidence that it is intended for the same purpose, it is not taken as a satisfaction. To make it so, it must appear at the time of the gift to be meant as an ademption of the legacy.” Without going over the cases, which may be found collected in any systematic treatise on legacies, it may be safely laid down that the whole doctrine which declares that an advancement to a child is a satisfaction of a legacy in a will antecedently executed, proceeds upon the presumption that payment, and not a fresh gift, was intended by the testator. This presumption may be overcome by evidence that such was not the intention, and when such evidence is offered it may be answered by other evidence of the same character. “ The whole question,” said Lord Chancellor Cottenham, “ is one of intention;” thus reaffirming a position which Lord Thüblow had laid down nearly fifty years before. (Powys v. Mansfield, 1837, 3 Myl. & Craig, 359.)

The defendants in this case rely upon evidence of the actual intention of 'the testator, and such evidence being of the most authentic character and entirely satisfactory, it is unnecessary to consider whether the plaintiff’s case is within the doctrine of presumed satisfaction. It is not necessary, either, to examine the ground upon which that doctrine, the policy of which has been sometimes questioned, stands. It has never been denied that an intention of the testator, that a gift inter vivos should satisfy a legacy, when once established, must prevail; though it has been doubted upon plausible grounds whether the reasoning, by which the doctrine of presumed satisfaction arising out of the relation of parent and child has been supported, was not too artificial and refined. (Ex parte Pye, 18 Ves., 151; Story's Eq. Jur., § 1118.) But I have not met with any case, English or American, in which the existence of the doctrine has been denied.

There is a supplement to this doctrine of presumed satisfaction, to this purpose : that though the legatee is°not the child of the testator, yet if it can be shown that the testator had adopted him, or placed himself in loco parentis, the presumption of satisfaction will prevail. The late case of Powys v. Mansfield, already referred to, is very full to this effect, and it shows that the relation which the testator had thus assumed may be shown by Ms acts and declarations: and in Monck v. Monck (1 Ball & Beat., 298), where the testamentary provision was in favor of a brother, and the testator subsequently settled a like sum upon him on his marriage, the settlement was held to be an ademption of the legacy, on the ground that it appeared from the will and settlement that the testator intended to assume the position of a parent towards the legatee. I am unable to see how this case differs in principle from the one under consideration, except that the reason for pronouncing in favor of an ademption is much stronger in this case than in the one referred to. The case cited was not within the principle of ademption between, parent and child. That will regard a brother as a stranger. (1 Roper, 365.) But because, upon reading the will and settlement, it appeared that the relation of parent was intended to be assumed by the testator, the court applied the presumption which arises upon that relation. Here the language of the will and of the subsequent advancement proves beyond a doubt that the latter was designed by the testator to be a substitute for the gift; no presumption is required to be indulged. The intention is expressed in language which cannot be misunderstood.

There is still another branch of the doctrine of presumed satisfaction which it may be useful to notice: Where the will expresses the purpose for which a legacy is given, as to enable the legatee to purchase a house or furniture, or to put him out as an apprentice, and the testator afterwards, in his lifetime, furnish him money for the same purpose; this is an ademption. (Debeze v. Mann, 2 Brown's C. C., 166; Trimmer v. Bayne, 7 Ves., 516; Rosewell v. Bennet, 3 Atk., 77; 1 Roper, 365.) Where the identity of purpose is ascertained from the will and the terms of the gift, the court applies the presumption. But suppose the testator to bequeath a legacy, and add language to the effect that if he give a like sum to the legatee in his liletime, it shall be a satisfaction. If you read the will and the evidence of the gift, the intention to satisfy the former is apparent; and the case will be stronger, if possible, if the will state that the gift which is to have the effect mf ademption will be found entered in his books of account.

The result of these views is that a satisfaction, according to the terms of the will, is within the principle of the cases of implied satisfaction; and that the present instance furnishes an example of ademption stronger than any of the numerous cases founded upon that doctrine, in the proportion that positive proof is more satisfactory than a presumption- of evidence.

It is unnecessary in the present case to decide whetl.. ■ an advancement by the testator, intended by him to be ‘. lieu of a legacy, but which intention was not made known to the legatee, in a case where the will had made no provision respecting advancements, and the relation of parent and child, either natural or conventional, did not exist, would adeem a legacy. We think it more suitable to withhold our opinion upon a question not presented on the record, and where our decision, one way or the other, would not form an authentic precedent. We simply hold that this legacy is not now recoverable out of the estate of the deceased, because it was satisfied in his lifetime, pursuant to an express provision of the will.

It is insisted that supposing the legacy to be satisfied by the advancement of 1839, it is reinstated by the subsequent reexecution of the will and codicils, in January, 1845. If the acknowledgment and renewed attestation which took place at that time are held to have only the effect of arepublication, the cases are quite decisive to show that the act had no such effect as is claimed. In Powys v. Mansfield, the testator had republished his will by a codicil executed after the ademption of a general legacy, and the legatee insisted that the legacy was thereby revived. The lord chancellor said it was “very true that a codicil republishing a will makes the will speak as from its own date, for the purpose of passing after-acquired lands, but not for the purpose of reviving a legacy revoked, adeemed or satisfied. The codicil can only act upon the will as it existed at the time; and at the time the legacy revoked, adeemed or satisfied, formed no part of it. Any other rule would make a codicil merely republishing a will operate as a new bequest.” (3 Myl. & Craig, 376.) The cases of Drinkwater v. Falc oner (2 Ves., Sen., 623); Crosbie v. McDouall (4 Ves., 611); Booker v. Allen (2 Rus. & Myl., 270); Paine v. Parsons (14 Pick., 318), are to the same effect.

The question then is whether the acknowledgment in 1845 is to be regarded as the primary and only execution of the will and codicils. The fact which is established, that all the testamentary papers which are material in this case were actually executed and attested at or about the time they bore date, is hostile to this position. This must have been within the knowledge of the testator at the time of the acknowledgment of 1845, for his signature and the attestation of the witnesses were before him. Then, again:, if we attach to that act the effect of an original and sole execution, inasmuch as the several papers were separately acknowledged, all the legacies expressly revoked by subsequent codicils, as well as those satisfied in whole or in part by advancements pursuant to the first codicil, would be revived. We can say with full confidence that such was not the intention of the testator; and we entertain no doubt but that the acknowledgment of 1845 was made for the purpose of affording additional evidence, if it should be necessary, of the execution of the several papers at the time they respectively bear date, without any intention of giving them a different operation from that which they would have if they stood upon their original execution.

It is very earnestly argued that the extinguishment of the legacy by the advancement in 1839, if held to be effectual, would be substantially a revocation of the provision in the codicil by which that legacy was bequeathed, and that this cannot be done consistently with an enactment in the Revised Statutes, unless'by a subsequent attested paper, or by burning it, &c., animo• revocandi. The statute does declare “ that no will in writing, except in the cases hereinafter mentioned; shall be revoked or altered, otherwise than by some other will in writing,” executed and attested according to the statute, “ or unless such will be-burned,” &c., with the intent to revoke the same. (212. S., 64, §42.) The excepted cases, and other directions respecting revocations, are contained in the seven following sections. They are these: first, marriage and the birth of issue, where either the wife or a child shall survive the testator : this is to be a revocation, unless the issue are provided for by the will or by a settlement, or are mentioned in the will in such a way as to show that they were not intended to be provided for; second, the subsequent marriage of a single woman, after executing a will, is a revocation; third, an executory contract to convey property devised is not a revocation; fourth, a charge or incumbrance upon property given by will is not a revocation, but the testamentary devisee takes it subject to the incumbrance; fifth, an alteration of the estate, by which the testator’s title is not wholly divested, is not a revocation, unless the intention to revoke is declared in the deed; or, sixth, unless the deed contains provisions inconsistent with the will: if it does, it is a revocation, unless they depend upon conditions which have not been performed. (§ § 43 to 48 inclusive.) The argument of the opinion which I have before mentioned is, that the satisfaction of a legacy by an advancement made by the testator in his lifetime is an implied revocation; that the statute in its general language embraces all manner of revocations, and that the words, “ except in the cases hereinafter mentioned,” followed, as they are, by certain special instances in which particular implied revocations are allowed, render it quite clear that no other description of revocation, either express or implied, can now exist. The argument appears to be unanswerable, if ademption or satisfaction is the same thing as implied revocation.

The ademption of a legacy of personal estate is not usually called revocation. When the term just mentioned is not used, the act is called satisfaction, payment, performance or execution. But when these terms are thus used, it is not quite in their ordinary sense; for their primary relation is to some debt, duty or obligation resting absolutely upon a party, whereas a will, having no effect in the testator’s lifetime, does not bind him to anything. The word ademption is the most significant, because, being a term of art, and never used for any other purpose, it does not suggest any idea foreign to that intended to be conveyed. It is used to describe the act by which the testator pays to his legatee, in his lifetime, a general legacy which by his will he had proposed to give him at his death. (1 Roper 365, ch. 6.) It is also used to denote the act by which a specific legacy has become inoperate on account of the testator having parted with the subject. But that is immaterial here. Aside from the statute, an advancement of a like sum, with intent to pay the legacy in question, would, in the understanding of every lawyer, be an ademption. Now, the statute does not say anything, in terms, respecting ademptions, nor does it allude to the subject in any way, unless it does so in using the term revocation To revoke is to recall what one has done or promised. A testator who concludes to anticipate a proposed testamentary gift cannot be said, by any just use of language, to revoke or recall it, when, so far from wishing to undo what he has done, he has concluded to do it sooner than he before intended. By a very loose and indeterminate use of language, anything which renders a bequest inoperative at the testator’s death may possibly be called a revocation, and we are shown in the opinion referred to that there are instances where it has been so used. Lord Macclesfield is reported to have said, in a case of double portions, that by the laws of all other nations, as well as of Great Britain, the last was a “ revocation of the portion given by the will.” The reference to foreign laws shows that the word was used in a very general, and not in a strict or technical sense. It was not said that the will or any part of it was revoked, but that it was a revocation of the portion. It was in a very short opinion taken down by the reporter (1P. Williams, 681.) But Lord Eldost fir a more elaborate opinion, in a case of alleged double portions, used the same terms for the like purpose. After qualifying the gift inter vivos as an ademption half a dozen times, and as satisfaction still oftener, and alluding to an objection made at the bar, that if the testator had not intended that the legacy should be paid he would have altered his will, he adds : “ The answer [to that objection] is, that the subsequent advance operates as a revocation, and therefore actual revocation is unnecessary.” The meaning is not that the subsequent advance was in a proper sense revocation, but that it operated in that instance in the same way; as if he had said there was no need of his revoking it, as the ademption or satisfaction just as effectually extinguished it. (18 Ves., 155.) But there are a few cases in which judges have been called onto discriminate, in precise and accurate language, between ademption and revocation. Rosewell v. Bennet, already referred to, was the case of a legacy for a special purpose, which it was adjudged he had accomplished by an advance of money in the testator’s lifetime. Tho defendant’s counsel relied upon the statute of frauds and perjuries. Lord Habdwicke said: “As this act of the testator after making his will is not a revocation of the will, but an ademption only of the defendant’s legacy, I am of opinion that the plaintiff ought to be let into this evidence,” &c, (3 Atk., 78.) In Kirk v. Eddows, which has been cited, the defence was that the legacy had been adeemed in part. The vice-chancellor,. Sir James Wigbam, said: “The evidence [to prove his advancement] does not touch the will. It proves only that a given transaction took place after the will was made, and proves what that transaction was, and calls upon the court to decide whether the legacy given by the will is not thereby adeemed. An ademption of the legacy and not revocation of the will is the consequence for which the defendant contends.” The vice-chancellor then referred to the judgment of Lord Habdwicke, above mentioned. (3 Harc, 519.) These two cases are just one hundred years apart, and, connected as the last is by a reference to the first, they may be taken to show the sense of the English Chancery, during all that time, upon the distinction in question. The exceptions in our statute, which have been much pressed upon our attention, have not, J think, any influence upon this question. They are all cases of revocation by implication: marriage and the birth of issue; the marriage of a testatrix who was feme sole at the execution of the will, and the alienation of the testator’s estate by a conveyance containing provisions inconsistent with the will. These were all plain cases of revocation prior to the Revised Statutes, which simply affirmed the common law. (1 Jarman on Wills, 106, 130.) They are not of the same general nature as ademption or satisfaction. They assume that the testator’s circumstances had become so far changed that if he had thought of Ms will he would have altered it; but as the courts know not what change he would have made, they consider him as having revoked it. The courts cannot, consistently with the statute, hold that any other mere change of circumstances will amount to an implied revocation; but I see nothing to prevent their considering performance or satisfaction to be still available according to the law as it existed prior to the revision of the statutes. But, however this may be, where there is nothing in the will providing how-a legacy may become inoperative, I think it certain that the statute can have no reference to a case like the present, where the testator had declared in the will itself that the legacy should not be payable in a certain event, and where that event has happened. We do not hold the will revoked, when we follow the explicit directions of the testator in declaring the legacy satisfied. We should ourselves revoke it, in a certain sense, were we to declare the legacy payable in a case in which the will declares it shall not be paid.

The remaining question is, whether the testator, in making the entries upon his books of account, intended to satisfy the bequest of $100,000 of the debt of the city of Yew-York, the income of which he, by the will, bequeathed to the plaintiff, and the capital of which he gave to all her sun iving issue at her death, or the bequest of the like sum “ of the public debt of the city of Yew-York, bearing five per cent interest, usually called the water loan,” which, by the second codicil, he gave to six of the plaintiff’s children, or such of them as should survive him. That he referred to’one or the other of these bequests is certain, for there is nothing else in the will or codi'cils to which he could have referred. This is wholly a question of construction upon the entries in the books, and is not free from difficulty. The entries correspond with the bequest in the will in an important particular, in which they at the same time differ from the bequest in the codicil. The entries relate, in express language, to property left to Mrs. Langdon, the plaintiff, by the antecedent testamentary disposition; but in the bequest of the water stock contained in the codicil she took no interest whatever. On the other hand, those entries correspond with the gift in the codicil in several material features, in which respect they do not conform at all to the bequest in the will. First. Both items of funds transferred are stated to have been left by a codicil. The testator appears to have supposed himself to be engaged in executing, by way of anticipation, two testamentary gifts, contained in the same testamentary paper; and that such- paper was not his will, but a codicil to his will, executed subsequently. The distinction between the will and the codicils was present to his mind. The second codicil did contain legacies of two several sums of $100,000 in funds. They were, moreover, in immediate juxtaposition, as written down in the codicil. Second. The funds charged were Yew-York city water stock, and there is a reference to the certificate by which the interest was vested in the trustee. By turning to the certificate it is found that it Was truly stock bearing that name which was advanced. It does not appear, and I do not suppose, there was any material difference in value between this water stock and the other city debt described in the bequest in the will. It carried the same rate of interest, and both being secured by the public faith and corporate responsibility of the city corporation, were probably equally safe as investments. There was, however, a distinction between the two kinds of funds. The water stock was authorized by particular acts of the legislature, which declared that the stock should be called “ the water stock of the city of New-York” (Laws 1834, ch. 255 ; id., 1838, ch. 127); and the testator, as appears by his ledger, subscribed for stock certificates to the amount of $150,000 m the summer and autumn of that year. The codicil by which $100,000 of the water stock were given to six of the plaintiff’s children was signed in the month of January, and the entiles were in August succeeding that date. We may add to these circumstances that the distinction, between this stock and the other city debt, was kept up in the testator’s accounts; the ledger account of the water stock being entitled “New-York city water stock, five per cents, 1860.” The distinction between the two kinds of funds we may therefore presume to have been palpable enough to his mind, though not very material in fact. There would be no particular inconsistency, it is true, in his making an advancement of the water stock to satisfy a legacy of othei city stock, and if this was the only want of correspondence between the legacy and the advancement it would not be material. It should, however, be remembered that the testator had the other city stock on hand when he made the advancement, for it appears that he did not sell it out until 1844. When he made the advancement he possessed sufficient of both kinds of stock. The legacies were demonstrative, having a reference to the special subject bequeathed, yet, upon the defendants’ theory, he advanced water stock to satisfy a legacy of other city stock. Third. By the will, the remainder, after the plaintiff’s death, was given to all hez children, or such of them as should survive her, while, by the advancement and the entries which accompanied it, one of her children, Mrs. Boreel, took nothing. In this respect it corresponded with the legacy in the codicil, but differed from that in the will. The advancements were no doubt intended to satisfy and extinguish the claims of all the legatees, who would otherwise have taken an interest in the subject bequeathed, as well the remainders as the primary estates. If the testator intended to adeem the legacy in the will, he intended to cut off Mrs. Boreel altogether, which is not readily to be supposed. A testator may probably do this in cases of implied ademption. It is not essential that an advancement to adeem a legacy on this ground should correspond as to the ulterior limitations, when it is clear that the same family were designed to be benefited. (Kirk v. Eddows, 3 Hare, 521, 2, and cases cited.) But where a testator declares in his will that if he shall make advances to persons provided for in that will it shall be applied on account of the legacies, I do not think a legatee who takes no interest in the advancement can be affected. That would be, as the vice-chancellor said in the case last referred to, revocation and not ademption. If, therefore, this advancement is held to be applicable to the legacy in the will, we must suppose the testator intended to cut off Mrs. Boreel from her share in the $100,000 without any equivalent.

I do not place any reliance upon the memorandum upon the draft of the codicil. It was not a paper made in the course of that transaction, and I do not think it competent for the purpose of explaining it.

I have adverted to all the considerations which appear to favor the position that the legacy given to the six children by the codicil is the one to which the entries apply Whether they ought to be held sufficient to overcome tin striking fact that the entries purport to give to the plaintiff, bywayof advancement, a life estate in the $100,000, as pro perty left to her by a testamentary bequest, when, if thus applied, they will supersede a legacy in which she took no interest, it is unnecessary to say, since I think that two considerations, not yet adverted to, are of sufficient weight to compel us to apply the advancement to the legacy given by the will: First. The testator did not intend by the advancement to deprive any of the legatees of what he had given them, or to reduce the amount or value of their legacies. His design was to improve their condition, and not to injure them. By the codicil, the six children of the plaintiff, named in it, or such of them as should survive the testator, took a vested interest in the $100,000 of water stock, to commence in possession at his death. If the advancement of water stock be applied to that legacy by way of satisfaction, a life estate is interposed between the testator’s death and the commencement of their enjoyment, and a new period is fixed for determining who among them are to take as survivors, and it is a different person whom they are to survive in order to take. It may very well be that some who have survived the testator will not survive the plaintiff. This singularly dislocates and confuses the dispositions of the codicil. It causes the advancement, which was plainly designed to be substitutional, and will be so in the main if applied to the legacy in the will, to be given for life to a party who takes nothing by the legacy for which it is a substitute ; it postpones for the period of another life the title of the parties who were to have taken an estate in possession at the testator’s death, and, in a very probable event, it will altogether deprive some of these parties of any benefit from the legacy. Second. By the sixth codicil, executed after the advancement and the entries, the share of Louisa Langdon, one of the six children, in this $100,000 of water stock is taken from her, and the income of it is given to the plaintiff for life, and the capital is given to her other children upon her death. This, of course, assumes the legacy to be still on foot, whereas, upon the theory that the advancement applied to it, it was adeemed and had become extinct. Louisa’s share is given to the plaintiff for life, whereas, by the substituted gift, she was possessed of the whole sum for life.

It must be conceded that the testator acted under some misapprehension, when he made this advancement, as to the precise state of his testamentary dispositions. But I suppose we are obliged to give the same reasonable construction to the act which we would in the case of any other transaction in pais. We must give it such an interpretation as will effect the testator’s purpose, if reasonably practicable, ut res magis valeat quam per eat. By applying the advancement as a substitute for the legacy in the will, it adjusts itself perfectly to the plaintiff’s case, and satisfies the legacy in her favor. I am of opinion that it should be so applied, and that this legacy is adeemed and satisfied upon the principles which have been stated as applicable to the bequest of trust company certificates. The rights of the plaintiff’s children are not before us. The suit as originally commenced was not so framed as to settle any question between them and the executors. Besides, it was dismissed as to them by the judgment of the special term. Neither they nor the executors have appealed from that judgment. What has been said, in regard to the effect of the advancement upon the legacy in their favor, has not been with any view to settle their rights. It seemed, however, necessary to consider how far the substituted gift would adjust itself to the testamentary act, in respect to the remainders as well as to the primary estate, in order to determine which of the legacies of city stock he intended to satisfy.

The directions given at the special term, in respect to the fund to be made up in order to secure to the plaintiff the sum of $15,000 of annual income, appear to me correct; and I am in favor of reversing the judgment rendered at the general term and affirming that of the special term.

Bowen, J.

The principal question in this case is, whether the bequest to the plaintiff of the income during her life of $100,000 of the debt of the city of New-York, bearing five per cent interest, made by the original will of John Jacob Astor, and the bequest to her, made by the second codicil to the will, of the income during her life of $100,000 deposited in the New-York Life Insurance and Trust Company, bearing interest at five per cent, were satisfied by the testator, before his death, by the transfer by him of an equal amount of the city debt, and of money deposited with the Life Insurance and Trust Company, to William B, Astor, in trust that the interest thereon be paid to her during her life.

In the view I take of this case it is unnecessaiy to consider the question whether the two legacies in question are specific or general. It may be conceded that they are both general, although, so far as relates to the deposit in the New-York Life Insurance and Trust Company, I think it at least questionable whether the gift thereof is not specific, in that sense of the term that, in case the testator at the time of his death had no deposit with that company, the legacy would have been adeemed were it not for the clause in the will providing against such a contingency.

I think it also unimportant to determine whether the rule established in England, that where a father gives a portion to a child by will, and subsequently makes advances to the child, such advances are prima, facie a satisfaction of the portion to the extent of the advancement, unless a contrary intention appears, was ever the law of this state. It is insisted that if such was ever the law of this state, it ha: been abolished by the provisions of the Bevised Statutes (2 R. 8., 64, § 42); and if a satisfaction of a legacy given by a will, by an advancement of an equal sum by the testator in his lifetime, is a revocation or alteration of the will, within the meaning of the section of the statute above referred tf, then that the English rule above referred to has not been tb t law of this state since the adoption of those statutes, whatever the law was prior to that time. The statute in question declares that no will in writing, nor any part thereof, shall he revoked or altered, otherwise than by some other will in writing, or some other writing of the testator declaring such revocation or alteration, and executed with the same formalities with which the will itself is required to be executed, with certain exceptions not applicable to this case.

I think that a satisfaction of a bequest, by an advancement by the testator, is neither a revocation of the bequest or an alteration of the will by which the bequest is made, in the sense with which those terms are used in the statute. A will is defined tobe “the legal declaration of a man’s intentions of what he wills to be performed after his death.” (2 Bl. Com., 499.) Or, as defined by Chancellor Kent (§ 67), “a disposition of real and personal property, to take effect after the death of the testator.” As applied to a pecuniary legacy, it is the legal declaration of the testator’s intention as to the disposition to be made of the money, or as to who shall have and enjoy the benefits to be derived from its use, after his death. If, after executing the will giving such legacy, he concludes that the enjoyment of such benefits shall commence before his death, his intention, so far as expressed or declared by his will, is neither revoked or altered. The donee will, in such case, enjoy, after the testator’s death, all the benefits of the gift which he would have done had the possession of it been postponed until that time, even if the money had previously been invested or used. More especially is that so with regard to the lega cies in this case. The intention of the testator, as expressed in his will, was, that the plaintiff should have and enjoy the income of the $200,000 from the time of his death during her life, and on her death the principal to belong to her children; and his intention in that respect is being literally carried out and will be fully and exactly executed, notwithstanding the enjoyment by her of such income for a period antecedent to the death of the testator. Such enjoyment was in addition to the legacies, and not a revocation or alteration of the will. She has received and will be entitled to receive precisely the same amounts subsequently to the testator’s death as if the advancement had not been made, and not a penny more or less, and the same is the case with regard to her children. An advancement intended by the donor to be in lieu of a legacy is, by elementary writers, and judges occasionally, although, as I think, incorrectly, termed a revocation, although more frequently a satisfaction or ademption of the legacy. (Lovelass on Wills, 367-371; Worthington on Wills, 86; Story's Eq. Jur., §§ 1108-1118; 2 Williams on Ex'rs, 946.)

If it be claimed that, in case of such advancement, the donee will, after the death of the testator, hold the money or property advanced under the prior gift, and not under the will, it may be answered that the legacy is merged in the gift. The gift is not in opposition to, but in perfect accordance with the legacy. The former includes the latter. In case of a merger, the estate merged is not extinguished, much less is it revoked.

I do not think that the provisions of the Revised Statutes, referred to, have any application to the ademption or satisfaction of legacies by subsequent gifts.

The English rule, by which an intention on the part of a testator to satisfy a legacy from a parent to a child, by a subsequent gift ejusdem generis, is implied, when the testator has expressed no such intention, has been the subject of frequent animadversion by English jurists. „ But no such rule is sought to be applied to this case, and consequently it is unnecessary to inquire whether it sho aid be adopted as the law of this state. No intention of Mr Astor, the testator, is attempted to be applied or carried out which he has not plainly and distinctly expressed. Had the testator, by his will, provided that every advancement he should subsequently make to the plaintiff should satisfy, to the extent of the advance, the legacies to her, without adding the proviso, “if charged in his books of account,” no question could have arisen as to the effect of the transfers made to her or for her use, so far as they were intended to be in lieu of the provisions in the will. It is conceded that in such case the transfers would have operated as a satisfaction of the legacies. But it is claimed that, by the proviso in question, the testator attempted to reserve to himself the power to declare his intention, as to the effect to be given to any such advancement, by a simple entry in his books of account. It is said that when a testator in his will provides unconditionally that future advancements shall operate as satisfaction pro tomto of legacies, he thereby declares his intention in relation thereto ; but that when he provides by his will that they shall so operate if charged in his books of account, his intention in that respect is not declared by his will. But I think that in either case it must depend upon the intention of the testator, at the time the advancement is made, whether it shall operate as satisfaction. It is true that, in the first case, he expresses his intention at the time of making the will, or rather expresses what he then supposes his intention will be subsequently, when he makes the advance; but I suppose that, in such case, a subsequent cumulative advancement could be made by him to his legatee, without resorting to the formalities requisite to the making of a will. If the donor, at the time of the bestowment, intended the gift to be cumulative, I suppose such intention would make it cumulative, and that the intention might be shown by parol evidence. But if the argument of the plaintiff’s counsel be sound, a cumulative gift would, in such case, be a revocation of the will, or of that part of the will declaring the intention of subsequent advances, and consequently subsequent advances could not be made cumulative, except by an instrument executed with the formalities of a will. That the operation of cumulative gifts would be to revoke, quo ad hoc, the declaration of intention in the will, that they should apply in satisfaction of a legacy or legacies, must be admitted; but it appears evident to me that such a declaration of intention may be revoked or rendered inoperative by proof that the gift when bestowed was intended to be cumulative, and not in satisfaction, for the reason that the declaration of such intention is not testamentary in its character, as the intention is to be fully carried out and executed in the lifetime of the testator. In this case the testator declares by his will that his intention as to whether future advances shall operate in satisfaction of legacies, or rather that his intention that they shall so operate, shall be indicated by charges in his books of account. Those charges were to be made in the lifetime of the testator, and were to accompany the gift as a part of the res gestee. When made, that they indicated the then intention of the testator, the purpose and object of the gift at the time of its bestowal, cannot be and is not disputed; and I think such intention should not be defeated by the provision in the will that the object and intention should be indicated by the charge in the books of account. In fact, I think that, notwithstanding this provision of the will, it was competent for the testator to declare his intention that subsequent advances should satisfy legacies, otherwise than by charges in his books, for the reason above suggested, that the declaration of such intention is not testamentary in its character. It qualifies, and is in fact a part of, or an ingredient in, the bestowinent. A man cannot, by a will or by any other instrument, in whatever form and with whatever solemnity executed, either limit or control his power of subsequently, in his lifetime, disposing of his own property, or prescribing the forms by which it must be done to be effectual. So long as he has parted with no title or interest therein, so long he retains the jus dispotiendi, and the bestowing of property in satisfaction of a legacy in a will is but the legitimate exercise of the jus dkponendi It is true that, when this righA or power is so exercised as to take effect after the death of the owner, it must be done by a will or testament,- but a bestowment, made by a testator, intended as in satisfaction of a legacy takes effect before his death, and if, as is attempted to ] shown above, the legacy is not thereby revoked, within tne meaning of the provisions of the Eevised Statutes relatir to the revocation of wills, the bestowment or advancement may be made without resorting to the formalities required in the making of a will.

But it is claimed on the part of the plaintiff, and the court below has held, that the transfer by the testator to the use of the plaintiff, during her life, of the $100,000 of the Hew-York city water stock was not intended by him as a satisfaction of the legacy to her of the use during her life of the $100,000 of the city debt. It is insisted that the charges or entries in his books of account, relative to the city debt or city stock, refer to the $100,000 of such debt or stock given by the second codicil to the six children of the plaintiff. That a mistake was made in the entries in the books is perfectly evident. They describe $100,000 “ Hew-York city water stock,” “left” or “bequeathed * * in similar items by a codicil in my will,” and so far they correspond with the bequest, in the second codicil, of the $100,000 city debt to the children of the plaintiff. But they further describe this item as “left” or “ bequeathed to Mrs. Langdon in similar items,” and so far they correspond with the bequest, in the original will, of the $100,000 city debt to the plaintiff'. As but two items of $100,000 city debt are mentioned in the will and codicils, that the entries in question refer to one of the two is perfectly evident. Those entries do not correctly describe either item, but in part one and in part the other, and the question is, to which of the two were they intended by the testator to refer; or, in other words, in what did the mistake in the mind of the testator, when he directed the entries to be made, consist ? I think the most reasonable conclusion is, that the mistake consisted in the supposition on his part that the bequest in question to the plaintiff, of the interest during her life of the $100,000 city debt, was made by the second codicil to his will, and not by his original will. Those entries were evidently made with reference to the provision in the first codicil as to the effect of future advances. That provision is • “ And inasmuch as I may make advancements or beneficial provisions for persons or purposes provided for in my will and codicils, it is my direction that such advancements, if charged on my books of account, shall be deemed so much on account of the provision, in my will or codicils, in favor of such persons or purposes.” The advancement of the $100,000 city debt, so far as it relates to the person in favor of whom it was made, corresponds precisely with the bequest of the $100,000 city debt contained in the will. In both, the interest is given to the plaintiff during her life, and, after her decease, the principal to her six youngest children. • A certificate of the city indebtedness, declaring the interest of herself and of her children therein, was delivered to her by the testator in his lifetime; and it must be presumed that she subsequently, and before her father’s decease, received the interest thereon, and has since continued to receive it. The supposition that the entries in the books of account relate to the $100,000 of city indebtedness bequeathed absolutely, by the second codicil, to the children of the plaintiff, implies the further supposition that the testator intended to satisfy, in part, the legacy to the children by an advancement to the plaintiff. But such is not the provision of the will or codicil relative to the effect of advancements. That provision is, that advancements for persons or purposes provided for in the will or codicils .shall, if charged in his books of account., be deemed so much on account of the provisions in the will or codicils in favor of such .persons or purposes. The $100,000 city indebtedness, given to the plaintiff’s children absolutely by the second codicil, is therein described as “ the public debt of the city of New-York, bearing five per cent interest, usually called the water loan,” and the entries in the books describe that transferred to the use of the plaintiff during life as “ New-York city water stock * * * * at five per cent,” while the city indebtedness, the interest on which is given by the original will to the plaintiff for life, is therein described as “ the debt of the city of New-York, bearing five per cent interest.” It is said that, at the date of the original will, no “ water stock” had been created; and as the entries describe “water stock,” it is claimed that, in making the entries, he must have had reference to the city indebtedness given by the second codicil, and not to that given by the original will. The twJ legacies were equal in amount, each bearing the same rate of interest, and, as it must be presumed, each equally well secured; and the material question is, which of the two, the one the interest upon which was given to the plaintiff during life, or the one given to her children absolutely, did the testator, by the transfer referred to by the entries, intend to satisfy? Whether “water stock,” or stock created for some other purpose, was transferred, is wholly immaterial. The “ water stock” must have been issued prior to the execution of the second codicil; and if, when the entries were made, the testator supposed that the legacy in question to the plaintiff was given by the second codicil, he also supposed it was therein described as “ water stock.” The memoranda, in the handwriting of the testator, endorsed upon the draft of the second codicil, correspond substantially with the entries. Assuming that the mistake in the testator’s mind consisted in supposing that the legacy to the plaintiff was given by the codicil, the memoranda are perfectly consistent with the idea that he intended to satisfy the legacy to her, and not the one to her children. But the same importance should not be given to these memoranda as to the entries in the books, for the reason that the former were made for his own private reference, while the latter were made to indicate, to all interested therein, the object and intent of the transfers in question. It is quite apparent that he did not, when he made the memoranda, read the instrument on which they were endorsed, for, if he had done so, he would have seen at once that a mistake had been made in the entries, either in describing the legacies intended to be satisfied as “left to Mrs. Langdon in similar items,” or in describing them as left “ by a codicil,” and the mistake would have been corrected. The third item of the sixth codicil shows conclusively to my mind that the testator did not intend that the transfer of the city debt should satisfy the legacy in question to the plaintiff’s children. That codicil was executed after the entries were made in the books; and by the third item thereof the testator revokes the legacy in his second codicil, of $100,000 city debt, so far as relates to Louisa, one of the six children of the plaintiff, and gives the interest of Louisa’s share therein to the plaintiff during life, and the principal, after the plaintiff’s death, to her other children. If this legacy had been previously satisfied by an actual transfer of the city debt, it was beyond his control. It was out of his power to revoke it or any part of it. That the testator should attempt to satisfy a legacy to one person by an advance to another, and that, too, under and pursuant to a clause of his will providing for such satisfaction by an advance to the legatee, and only to the legatee, is, to say the least, highly improbable, and an intention to do so should not be imputed to him unless such intention be clearly expressed. To impute such intention would be doing violence to the language of the entries in the books of account, made for the very purpose of expressing his intention in relation thereto; and at least no greater violence is done thereto by adopting the more reasonable' conclusion, that he intended, by an advance to the plaintiff to satisfy the legacy to her.

The remaining questions were correctly disposed of by the Superior Court. That the testator intended that the provisiono<the Srar^-codicil relative to future advances shm^d be applicable to all the codicils, as well as to the will and first codicil, is perfectly evident from the language of that provision, and the provisions of the eighth item of the fifth codicil put that question beyond dispute.

The reexecution of the will and codicils in January, 1845, can have no other effect than a republication. The question, in this case, as to the effect of the reexecution, is confined to the original will and the first two codicils. These had all been previously executed in due form, as was shown before the surrogate, and the reexecution could not annul the prior execution, or alter or vary the effect of the instruments, any further than as a republication. They were the same instruments after, as before, the reexecution. That a republication will not revive a satisfied legacy is, I think, established by the authorities. (Powys v. Mansfield, 3 Myl. & Craig, 359; Drinkwater v. Falconer, 2 Ves., Sen., 623 ; Paine v. Parsons, 14 Pick., 318.)

The proceedings before the surrogate, when taken altogether, show that the will and codicils were proved and recorded as nine different instruments, executed at different times, notwithstanding the entry in the surrogate’s minutes, that he adjudged the will and codicils to be u the last will and testament of the said testator,” &c. All the instruments together, although executed at different times, did in fact constitute his will relative to the disposition of his estate after his decease.

I think that the judgment of the general term of the Superior Court should be reversed, and that of the special term affirmed.

All the judges concurring,

Judgment of the Superior Court at general term reversed, and that at special term affirmed.  