This case was once submitted to the court mainly upon the questions of law presented by the marriage settlement agreement between the deceased testator, Edmund H. Miller, his daughter, Emma Ricci and her husband Francesco Ricci, and the will of Edmund H. Miller. The conclusions reached by the court are reported in its opinion sub nomine Miller v. Ricci, 28 Misc. 666. Leave of the court was obtained to re-open the trial before the formal decision was signed, upon the application of the executors and trustees, based upon the plea that evidence could be offered to show that the deceased daughter Emma Ricci had given practical construction to the theory of the executors and trustees of an absolute advancement of $34,000, by her assent to a partial division of the estate and the executors’' interlocutory accounting. Evidence was taken upon such farther hearing, the death of Francesco Ricci, executor and sole legatee of his deceased wife, Emma Ricci, having delayed the proceedings until the defendant Coudert was substituted as ancillary administrator of Francesco Ricci. Upon this resubmission of the case counsel for the executors and trustees has urged, with all the force with which his view may be presented, the reasons why this court should come to a different determination upon the main question, because the original determination was claimed to be incorrect, and also for the purpose of a suitable foundation for the argument that Mrs. Ricci had waived her rights, even if she might without any action on her part have claimed the interests determined in her favor as heretofore announced.
I have considered .the additional suggestions made upon the main question, but remain of the same opinion as that I have already announced, and add but a few suggestions .to those I have before stated. It is undoubtedly true that a testator, in considering what benefits he may give to his five children, can, tif he so chooses, determine that a life income shall be equivalent in the light of an advancement to a sum stated and fixed by him in his will, and so deduct that gross sum from her residuary share. But the income of a fund, which fund is held back by a trustee and not *47paid over, is only the use of the moneys represented which the beneficiary would have in addition to the principal had the whole sum been paid over to her before the death of the testator. The-deduction of a stated sum as an advancement of principal is not presumptively founded upon a mere payment of life interest. The amount named in the marriage settlement to be paid to the daughter yearly was the lawful interest upon $34,000, according to-the then law of the State of New York.
¡Nor do I think that the daughter’s interest in the residuary estate was simply one-fifth of one-half. She, living, could certainly take but one-tenth of the residuary so long as her mother lived; but on the death of that mother the trust half preserved for the use of the mother came to the five children, the period of enjoyment only being deferred. It is absolutely repugnant to the expressed idea of equality in the division of his property, both in life and after death, that this daughter should have $34,000 carved out of her estate as an advancement which she never-received and never could receive, so that if she died childless an hour after her father’s death the sum of $34,000 should be taken out of her residuary interest in his estate, and then one-fifth of it should be restored later to her estate by process of undisposed of personalty dropping back into the residuary, -which the testator never dreamed would be enhanced by this $34,000, because under his will, he evidently regarded it as gone from that estate forever.
¡Nor do I deem that the agreement by which the sum of $281,000 was divided during the progress of administration, executed in July, 1888, a year after the testator’s death, takes from the daughter any rights she would otherwise have. It would appear that at this period the executors evidently deemed the sum of' $34,000 to have gone from the estate, just as the testator did when' he made his will in 1883. They presented to her an agreement for a division of a portion of the estate, and in the schedule charged to her an advancement of $34,000 exactly as they charged to the-other daughter, Mrs. Maegillicuddy the advancement of $30,000. She had before her the will of that father, upon which the executors rest for the basis of charging the advancement to her, in which he states as the fundamental basis of such charge of that advancement that he bad upon her marriage settled upon her and' her issue the sum of $34,000, for which he had given to her husband an obligation; it was not stated to be an advancement to her *48of income with a return of the principal sum if she died childless, and she had the right to infer that her consent to a deduction of that sum, upon a preliminary division of a portion of the property, was upon the basis that she and her estate would receive the sum named and not merely one-fifth of it. Assuming that she was entitled under the marriage settlement to regard the $34,000 fixed by the obligation of her father as so much coming to her interest in her father’s estate, she did not release that right by her assent to the division named which would not leave the executors in a position to be compelled to pay to the other children any sums mistakenly paid on account of her action. Sufficient property remained to satisfy her portion on the basis of equality of all, and refunding bonds were carefully provided for to be given by those who shared in the distribution.
A majority of the justices of the Supreme Court of the United States have decided in a recent case, upon this very question as to whether advancements should be absolutely charged, that the intentions of the testator gathered from the will construed by the circumstances surrounding him should control, and that, even where the son gave the administrators an acknowledgment of the receipt from them of $136,035.75 by his own notes as part of his distributive share, yet, as it was a transaction between the trustees and the beneficiary, it would not be upheld in equity and that sum should not be charged to the portion to be received by the son. Adams v. Cowen, 177 U. S. 472.
There is here no evidence of bad faith on the part of the executors, and they undoubtedly made their partial distribution and interlocutory accounting on the theory that the advancement of $34,000 was to be taken out of Mrs. Ricci’s share, because it had already, been substantially taken out of the estate, and there was no probable contingency of restoration.
I, therefore, hold that the scheme of distribution provided for by the will for an equal division among the children should be carried out in awarding judgment herein.
Judgment accordingly.