Hays v. Hibbard

The Surrogate. The Revised Statutes contain a provision for advancements to be set off, if made to' any child of an intestate. (1 Rev. Stat., 754, § 23.) The 75th section provides for the order of distribution in case of intestacy, and the term deceased intestate, or deceased testator where a portion of the estate is-not bequeathed, is used, and by section 76 and 77, it is provided that if a child of the deceased person shall have been advanced, the value thereof shall be reckoned,' and if the advancements amount to the share distributable to the child, such child shall be excluded from any share of the distribution of such surplus of the personal estate, and if not equal to such amount then the child &c., is made entitled to so much as shall make the share equal, and the question is whether they apply to cases other than intestacy. [30] The 78th section provides that the aforesaicj sections shall not apply in any case where there shall be any real estate of the intestate to descend to his heirs. In Thompson v. Carmichael, (3 Bandf. Ch., 120) it seems to be assumed that the sections under consideration are applicable only to a case of intestacy, and the expression in section 76 “ if any child of such deceased person,” evidently refers to the deceased persons mentioned in section 75, which are, first, the intestate deceased, or deceased persons leaving a will and property not bequeathed, and it seems to me that there is abundant reason for this interpretation, and that it is because the testator, when he makes a general disposition of his property by will, would be likely to make some reference to his intention, in respect to any advancement he may have made to his children, and that in the absence of any such provision, the presumption is that his bounty is conferred with reference to what- he may have advanced prior thereto. The next question for consideration is whether the legacy to William F. Hibbard, one of the residuary legatees, can be regarded as adeemed by the advancement aforesaid, but I am of the opinion that the principle of ademption does not apply to a residuary legacy. In Roper on Legacies (p. 376,) it is stated as a fourth exception to the general rule of presumptive advancement where, the bequest is uncertain in amount, that the devise of the residue, or of part of a residue to a child is not adeemed by a subsequent advancement upon the legatee’s marriage, &c. (And see 2 Williams on Executors, 1143.) From these authorities it seems to me entirely clear [31] that the question of advancement should not be included in the questions submitted to the auditor in this case: First, because it is not a case of intestacy in whole, or in part; and Second, because the legacy is residuary and therefore not adeemed even pro tanto. Let an order referring the case to an auditor be submitted.