¶1It is not disputed that, if the testator, by his will, had given specific legacies to his children, or had divided his property unequally among them, the prior advancements in question could not have been charged against their shares or legacies. The question is whether we have a right to assume, without any express statement to that effect in the will, that the testator intended that these advancements should be charged, merely from the fact that he divided his property equally. We think that we should not be justified in making this assumption.
¶2If the deceased had made no will, then these advancements would have been charged to the respective parties. Why, then, did he make a will dividing his property equally, unless it were to prevent that very result ? He know that he had made unequal advancements, and he had carefully taken receipts. Thus, he had provided that, if he should die intestate, these advancements would be charged to the parties on the distribution of his estate. But he was clearly at liberty to change his intention in that respect, if such had been his intention. And the way to effect such change was to make a will, dividing the property, of which he should be the owner at his death, equally among his children. *219This be did. If be bad intended that tbe advancements should be charged against bis children, he would have said this in bis will.
¶3Of course, we may conjecture that be desired an equal division, including tbe advancements. And, on tbe other band, we may conjecture that be desired an equal division, excluding tbe advancements. The' only safe course is to take what be said'in bis will as bis meaning, and to make no conjectures whatever. He said that bis property — that is, the property which be owned at his death — should be divided equally.
¶4These advancements were no part of bis property ; and, therefore, do not come into account in tbe division.
¶5Tbe decree of tbe surrogate must be modified in accordance with these views, and neither party should have costs of tbe appeal.
¶6Decree reversed and distribution to be made according to tbe terms of tbe will, without reference to tbe advancements.