majority">The Surrogate.

There is no will in this case dis*143posing of any part of the property differently than it would be disposed of, if the deceased had died totally intestate.

There probably can be no doubt, but that, as a principle, the Statutes of the State of New York, concerning advancements, apply only to the estates of intestates; that the statutes distribute the individual’s property who has not distributed his own, (1 R. S. 754. § 23,) although the Statute reads, “ Every estate or interest given by a parent to a descendent, by virtue of any beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendent.” (1 R. S. 737, § 127.)

In this case, the deceased held a contract from each of his children, that they would account to his legal representatives upon the settlement of Ms estate, for so much as they had respectively received out of their said several shares of his estate.

Now if he had intended in the will to have forgiven each of these his children, the sums they had so been advanced, how easy it would have been to express it in the will. But, the language of the will has no such import. '(Van Alstyne v. Van Alstyne, 28 N. Y. Rem. 375).

The sons have received sums differing from each other, and the daughters have received sums differing from each other, and differing from the sums received by any of the sons, and there is nothing indicating that the deceased intended any such discrimination between his children, but everything indicated, on the contrary, that Ms intention was an equal distribution of all his property among his ten children, he having made no bequests or devises in Ms will, but having simply given a direction to the executors what to do in relation to his property, and simply adding, u the avails thereof to be equally divided between my ten children.” This is *144no disposition of it, or any part of it, by will, any more than it would have been, had he added to the directions given his executors, that the avails thereof were to be divided between his ten children according to the statute.

And the sums advanced to each of these ten children are parts of his estate, and must be so considered in the distribution of his estate (2 R. S. 97, §§ 76, 77,) and the order on the final accounting will be entered in accordance with the view of the case as herein expressed.

Ordered accordingly.

Citation profile

How this case has been treated — in progress