95 Mass. 334 | Mass. | 1866
It is clear that in the distribution of an intestate estate this note of Bacon and his wife could not be treated as an advancement. Barton v. Rice, 22 Pick. 508. But it cannot be doubted that a testator may, by his will, direct that such notes be regarded as advancements, and deducted in making up the shares of the residuary legatees for a division among them. In such case the same mode of distribution would be proper and necessary as when advancements are to be taken into account in the settlement of intestate estates. The note ceases to be a debt to be collected. It is to be included in making up the sum total to be divided, and then is deducted from the separate share. It becomes, to all intents and purposes, an advancement merely; not by force of the statute, nor by virtue of its original character, but made so by the will of the testator. Hall v. Davis, 3 Pick. 450. This case is reduced, therefore, to a mere question of intention. The testator manifestly regarded the money, for which the note had been given, as an advancement to his daughter on her marriage. He so designates it; and he directs the same mode of disposition as would be adopted in the usual cases of advancements. He assigns a reason for having taken the note of Bacon jointly with his daughter, namely, “she being then a minor;” which shows that he did not consider it as a debt due from or to be paid by him. And he declares that “ of course, as my granddaughter, Eleanor G. Bacon, stands in the place of her deceased mother, the note of five thousand dollars, signed by her father and mother, must be deducted from the share devised for her use.” These provisions seem not inly unequivocal, but studiously explicit, as declaring the intention of the testator that the notes should, in all respects, be treated as advancements.
But the defendant Gassett relies upon a subsequent clause, in which the testator declares it to be his will, in case his said granddaughter “ should die without issue, that said note should
We are of opinion, upon comparing all the provisions of the will, that the testator intended the note of Bacon to be cancelled at all events, in the settlement of his estate ; and'the plaintiff is entitled to have a Decree accordingly.