Dixon v. Marston , 64 N.H. 433 ( 1887 )

Doe, C. J.

“ If any heir of any person deceased . . . has been advanced by the deceased in his lifetime, such advancement shall be accounted, according to its value, as part or the whole of the share of such heir. Such advancements . . . may be taken into consideration in the division of the real estate . . . or in the decree of distribution of the personal estate.” Gen. Laws, c. 203, ss. 9, 10. The defendant’s advancement, if adjusted in a division of realty, would be accounted as part of her share at the time of her father’s death; and there is nothing in the statute tending to show that the legislature intended her share should be more and her sister’s share less if the adjustment of the advancement were made in a distribution of personalty than if it were made in a division of realty. So far as a division or distribution is made by law, it is equal. The defendant received from her father an advancement of $9,000. If his estate at the time of his death had been $9,000, and these parties had been his only heirs, equality would require that under the circumstances of this case the defendant should be considered as having the income of her $9,000 since her father’s death, and that the plaintiff should have the income of her $9,000 during the same time. The facts disclosé no reason why the defendant, in addition to the whole income of her $9,000, should have half or any part of the income of her sister’s $9,000 while the law has had possession of the latter sum for the purpose of making a just settlement of the estate. The decree of September 22, 1885, determines what was the value of the defendant’s advancement at the time she received it, but does not determine at what time an equal amount should be regarded (between these parties) as belonging to the plaintiff. As against the defendant, in an equal distribution, the plaintiff is to be considered as entitled to $9,000 at the time of her father’s death; and the decree of December 14, 1886, is modified accordingly.

Clark, J., did not sit: the others concurred.