M'Kibbin's Estate ( 1903 )

Opinion by

Mr. Justice Mitchell,

Notwithstanding the general rule that advancements, strictly speaking, are confined to cases of intestacy, it is well settled that they may exist, though subsequently a will is made by the parent, and in such cases it depends on the will how such charges are to be considered: Watson v. Watson, 6 Watts, 254; Wright’s Appeal, 89 Pa. 67.

The note involved in this case is a sealed acknowledgment of indebtedness “ payable as follows, at my decease to be taken out of my share of her city property after her decease.” Notwithstanding the patent ambiguity of this language and whatever construction might be given to it, the money at the time of making the obligation was clearly regarded as an advancement. But it is almost equally clear that when she made her will subsequently, the testatrix had changed her intention in regard to this money. Her son Alexander, the maker of the note, had died, and in her will she made express provision for his children. Moreover she had considered the subject of advancements, and gave explicit directions concerning what should be so treated and the amounts, and these directions included by name the children of Alexander. Thus after reciting that she was possessed of real estate in Bedford, Fulton and Philadelphia counties, and had conveyed portions of it to various of her children, she directed “ that the Bedford county lands so divided among them shall be treated as advancements to my said sons William, George, Plarry and tci the children of my son Alexander (now deceased) each, of one thousand dollars in the final settlement of my estate as hereafter provided,” and “ that the Fulton county lands so divided among them shall be treated in the final settlement of my estate as hereinafter provided, as advancements to my surviving children, and to the children of my deceased children respectively, Alexander and Elizabeth, at the rate of five dollars per acre.” In the subsequent part of the same item' she devised the Fulton county lands to her three surviving sons, subject as aforesaid, and the real estate in Philadelphia to her executors in trust to sell, etc., and “ subject to the advancements to my children in land as heretofore mentioned and at the same price designated by me, either already taken or to be taken after my decease, I direct my executors to divide the said net purchase moneys of the said Philadelphia county properties, the accrued rents and income therefrom, and all other the rest and residue of my estate which may be in their possession, into eight equal parts, and to pay over and deliver one of said equal eighth parts to each of my children,” naming the six survivors, one other eighth in trust for a granddaughter and the remaining eighth in trust for the children of Alexander.

It thus appears that after the making of the advancement to Alexander, evidenced by the note in controversy, the testatrix made her will, in which she carefully considered the subject, provided what should be taken as advancements, the amount of them and the parties from whose shares they should be deducted, and then provided in explicit terms that “subject to the advancements .... heretofore mentioned ” there should be an equal division of the estate inter alios, to the children of Alexander, represented here by the appellant. In the face .of the express consideration and settlement of the subject by the testatrix herself, we are not at liberty to add anything to it. Viewing the note as an advancement at its inception, the testatrix has plainly canceled it as such and directed a distribution to the maker’s children without regard to it.

The learned auditor and the court below were guided by the expressed intent of the testatrix to make an equal division of her estate among her children. But they failed to give sufficient weight to the fact that she had herself indicated what she considered equality. Whether the lands in Bedford county previously conveyed to her sons respectively were of equal value, and whether $5.00 an acre was the actual value of those in Fulton county, does not appear nor is it at all material. The testatrix fixed those values and directed that subject to them the distribution should be equal. She thus closed all further inquiry as to her intent with regard to equality.

Decree reversed and distribution directed to be made in accordance with this opinion.