7 N.Y.S. 266 | N.Y. Sup. Ct. | 1889
The action was for the partition of the real estate mentioned in the second clause of the will of Charles Webster, late of Bidgeway, in the county of Orleans. That clause, after giving to his four children, Fanny, Ann, Lucius, and Milo, the farm in question, and all the personal property, except what had, by a previous clause, been given to his wife, proceeds: “The-above bequests to my children of the farm and personal property are to be so divided that same equal division shall be made between my children above named, by charging each of my children above named with what I have heretofore advanced to them, and each of them, and compound interest on such advancements; so that, with such advancements and compound interest, their respective amounts shall be equal. * * * In order to determine the advancements made to my children above set forth, reference shall be made to my book or books in which I have charged over to my children such advancements made them, and the time such advancements were made.” The will was made in-1877. The testator died 10 years later. Before the execution of his will, he had made to his three children Fanny, Ann, and Lucius advancements, varying in total amounts from $1,300 to $2,300; all of which were charged in detail, as matter of account, in the book or books referred to by the testator in his will. Two years after the execution of the will, the testator had entered at the foot of each of the three accounts a memorandum of a settlement of such account in full. This was done with the undoubted intention of canceling and discharging the account and demand in favor of his estate against each of such children; and so the accounts stood canceled and discharged at the time of the death of the testator. The facts were so found by the referee, and the conclusion of law that no advancements were chargeable to either of the devisees for the purpose of the division of the real estate in question, but that they took their several shares therein without deduction by reason of such advancements. Exceptions to this conclusion of law, and to the refusal to And otherwise, as requested, furnish the ground of the plaintiff’s appeal. I-Iis contention is that the entries in the book or books of account, referred to in the will, existing at the time the will was executed, and capable of certain identification as thejnatters referred to, were made by such reference a part of the will, because ingrafted upon, and a material element in, the testamentary disposition of the real estate in question, and, as such, could not be revoked or changed, except with the formalities requisite to a testamentary act.
We think the contention cannot be sustained. The answer to it is that the will speaks only from the death of the testator, and the estate disposed of is that only of which he dies seised and possessed. The effect of the provision of the will was to gi ve to the four children the claims against the three, to be divided equally between them with other property, real and personal. Another disposition of these claims, by the testator in his life-time, has the effect of an ademption of the legacy so far as the claims for advancements are concerned. It may be conceded that the entries in the books of account became, by the reference thereto in the will, a part of the will; but the case is not different from what would have existed if the claims had been promissory notes of his children, particularly described in the body of the will. That it would have been competent for the testator in his life-time to accept payment of the notes, or to surrender or discharge them, notwithstanding the other disposition indicated by his will, which had not yet. taken effect, will hardly be questioned. The argument of counsel for the appellant proceeds upon the theory that the act of the testator was a revocation of a part of his will. But.
