Joseph H. Sanford, senior, died on the 1st day of August, 1866, leaving a last will and testament, dated the 19th day of July, 1865; also leaving the plaintiff, an infant son, who was born after he made his will; also leaving the defendant Maria D. Sanford his widow ; and also leaving the defendants William A. and Joseph H. Sanford, sons, surviving him.
The deceased left an estate consisting of both personal and real property. He left the plaintiff* unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will. The plaintiff) therefore, succeeded to the same portion of. his father’s real and personal estate as would have descended or been distributed to him, if his father had died intestate; and he is entitled to recover the same portion from the devisees and legatees, named in his father’s will, in proportion to, and out of the parts devised and bequeathed to them, by such will. (2 B. S. 65, § 49.)
This action is a consolidated one, made by joining two, that were brought under and pursuant to two sections of the Revised Statutes. (2 B. 8. 456, §§ 64, 65.) One was bróught to compel a distribution of the personal estate of the deceased, so that the plaintiff will receive his share of the same. The other was brought to compel a partition of the real estate left by the deceased, and devised to the defendants, between such devisees and the plaintiff) so that he will have his share of such real estate, and so as to enforce a just and proportionate contribution by each devisee.
The consolidated action was tried before a referee.
*297The deceased, before he made his will, conveyed several pieces of real estate to his two sons, William A. and Joseph H. Sanford, who- are defendants in the action; which pieces of real estate the plaintiff claimed were advancements to them by the deceased. The plaintiff also claimed that the deceased gave William A. Sanford $3000, to enable him to start in business; and he claimed that such $3000 was an advancement.
The most important question in the case is, whether the several pieces of real estate, and the $3000 above mentioned, were advancemárts, within the meaning of the statute, by which it is provided that, “If any child of .such deceased person shall have been advanced by the deceased, • by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the,children; and if such advancement be equal or-superior to the amount which, according to the preceding rules, would be distributed to such child, as hia share of such surplus and advancement, then such child and his descendants shall be excluded from any share in the distribution of such surplus.” (2 R. S. 97, § 76.) “ But if- such advancement be not equal to such amount,, such child, or his descendants, shall be entitled to receive so much only asrshall be sufficient to make all the shares of all the children, in such surplus and advancement, to be equal, as near as can be estimated.” (Id. § 77.)- “The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement, within the meaning of the last two sections; nor shall those sections apply in any^ case where there shall be any real estate of the intestate to descend to his heirs.” (Id. § 78.)
It is further or again provided, by the statute, as follows: “ If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or’ *298of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin, according to law; and if such advancement be equal, or superior, to the amouut of the share which such child would be entitled to receive, of the real and'personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.” (1 R. S. 754, § 23.) “But if such advancement be not equal to sutffi share, such child and his descendants shall’ be entitled to receive so much, only, of the personal estate, and to inherit so much, only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal, as near as can be estimated.” (Id. § 24.) “ The value of any real or personal estate so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise, such value shall be estimated according ‘ to the worth of the property when given.” (Id. § 25.) “ The maintaining or educating; or the giving of' money to a child, without a view to a portion or settlement in life, shall not be deemed 'an advancement.” (Id. § 26.) ° ' "
There is another section of the Revised Statutes, which is applicable to the last four sections above quoted. It is as follows: “Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement to such descendant, within the provisions of the second chapter of this act.” (1 R. S. 737, § 127.)
The plaintiff’s rights are the same as they would have been if his father had never made a will, and had died intestate. (2 R. S. 65, § 49; Id. 456, §§ 62 to 65, inclusive.)
In no case can a child, born after the making of a will *299by his father, recover of any brother or sister, born before the will was made, any portion of any advancement his father made in his lifetime to such brother or sister. Hence the advancements in this case are to be considered only for the purpose of determining whether the defendants William A. Sanford and Joseph H. Sanford, shall have any portion of the real and personal property left by the deceased, and devised to them; or, if they are to have a portion thereof, how much they, shall have.
The point has not been made, that advancements, made by the deceased to the defendants of either of them, cannot be considered, in making a distribution of the surplus of the personal estate of the deceased, after payment of his debts, because there was “real estate of the intestate, to descend to his heirs.” (2 R. S. 98, § 78. See also Hicks v. Gildersleeve, 4 Abb. 1.)
It cannot be doubted that every advancement is'a gift, or that every gift is not an advancement. And upon the naked fact that a father buys and pays for land, and has the deed made to his child, the inference of law is, that it is an advancement to the child. (See Proseus v. McIntyre, 5 Barb. 424; Welt on v. Divine, 20 id. 9; 2 Beav. R. 447; Partridge v. Havens, 10 Paige Ch. 618.) And I am of the opinion when a parent conveys land to his child, without asking or receiving any consideration therefor, the presumption is that it is an advancement to the child, though the deed recites a money consideration, and contains an acknowledgment of the payment of it. According "to our statutes, (supra,) if any child • of a deceased person shall have been advanced by the deceased, “by settlement or portion of real or personal estate, the value thereof shall be deemed an advancement, except that “ the maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement.” (2 R. S. 98, § 78; 1 id. 754, § 26.) Small, inconsiderable sums of money, occasionally given *300to a child to spend, or to defray expenses in traveling, or to pay for small presents, and the like, should be deemed to have been given “ without a view to a portion or settlement in life,” and are not to be regarded as advancements. (3 P. Williams, 318, note o.) But a considerable sum of money given a son, to enable him to start in business, is, prima facie, an advancement. And, I think, every considerable sum of money given to a child, to use in business, should be deemed an advancement, unless proved to have been given “ without a view to a portion or settlement in life.” (Id., and Edwards v. Freeman, 2 id. 449. See Chase v. Ewing, 51 Barb. 597.)
hfow, within these rules, all the land that the deceased conveyed to his sons William A. and Joseph H.' Sanford, as gifts, without receiving or expecting any consideration therefor, 'and also such land as the deceased paid for, that was conveyed to such sons by third .persons, were advancements. And if the deceased gave his son William A. Sanford #3000 in money or chattels, to start him in business, the same was an advancement. (McRae v. McRae, 3 Bradf. 199.)
The defendants did not give any evidence that conclusively overcame the presumption, that the parcels of land conveyed to them were to he deemed advancements. We must, therefore, hold they were advancements; subject, however, to the question, w’hether the referee committed any error in admitting, or rejecting, evidence respecting the same. For the defendants had the right to prove facts and circumstances to show that such parcels of land were not advancements.
The defendants offered to prove, by the defendant William A. Sanford, who was sworn as a witness in the action, that he overheard a conversation, one new-year’s day, on which day two deeds to the defendants of real estate were dated, and that in such conversation the deceased said to one Benson, “I have this morning made *301each of my sons a present of a house and lot, as a new-year’s present.” The offer was rejected, on the ground that the witness was incompetent to prove the declarations of the deceased; and the defendants excepted. I am inclined to the opinion that, the witness was competent to •testify to what the defendants offered to prove by him; for the-reason that the offer was not to have the witness testify “in regard to any personal transaction, or communication, between such witness” and the deceased, which is prohibited by section 399 of the Code. (See Simmons v. Sisson, 26 N. Y. 264.) But I think the evidence offered was hearsay, and that it would not, if it had. been received, have tended to establish that the houses and lots were not advancements. They were advancements, though they were presents, or gifts. This ruling of the referee, if incorrect, was therefore immaterial, and did no harm to the defendants. But were it harmful, the finding of the referee, that the deceased made such a statement to Benson at a subsequent time, would not render such ruling material.
The plaintiff" proved by one Mellotte, and one G-orrie, that a short time before the death of the deceased, he said to them on different occasions, “I have given each of my sons, (meaning defendants,) $20,000, or $25,000, and I think they have had their share.” The defendants objected in due time to this evidence, and excepted to the rulings of the referee admitting it.
.It is not disputed that the declarations of the deceased, accompanying the conveyance of real estate to the defendants, or accompanying the giving of personal property to them, were competent evidence, as res gestee, on the question whether such real estate, or personal property, were advancements. (Sidmouth v. Sidmouth, 2 Beav. 447. Murless v. Franklin, 1 Swans. 13. Hicks v. Gildersleeve, 4 Abb. 1. 5 Barb. 424.) But such declarations are not admissible to contradict the plain terms and legal intend*302ment of a writing governing the transaction. (Chase v. Ewing, 51 Barb. 597.) The fact that a deed recites a money consideration, as paid to the deceased, does not prevent the plaintiff proving that no consideration was paid, to establish the fact that the land conveyed was an advancement. (McCrea v. Purmort, 16 Wend. 460; Witbeck v. Waine, 16 N. Y. 538.)
There are cases which hold that the declarations of a father, made subsequent to the execution of a deed of land to his son, or of a paper transferring personal property to him, may be proved against the son, to support the presumption that the land, or personal property, was an advancement. But I am unable- to see on what principle such declarations are admissible against the son. And I am so well satisfied that such declarations are not competent evidence against thé son, that I must hold that the declarations of the deceased, in this case, made subsequent to the execution of the deeds to the defendants, or subsequent to the receipt of $3000 by the defendant William A. Sanford, (if he received that sum,) were not admissible evidence against the defendants. The deeds had been executed and delivered to the defendants, and the $3000 had been paid over to William A. Sanford, (if that sum was ever paid him,) before the declarations proved were made by the deceased. They were made when it was not in the power of the deceased to revoke, or alter, either of the deeds, or recover back the $3000, or any part thereof. 1 think such declarations were mere hearsay, and therefore not evidence for the plaintiff. (Brown v. Mailler, 2 Kernan, 118. Levering v. Rittenhouse, 4 Whart. 130.) The admission of those declarations was a' material error against the defendants, which has not been cured, or obviated,
The plaintiff called William A. Sanford as a witness, and proved by him that he wrote and sent two letters to his father, which were put in evidence by the plaintiff’s *303counsel. He was asked by the plaintiff’s counsel, as to whether some of the statements in the letters were true . He answered, in substance, that he intended to toll the truth in the letters. In one of the letters was the following statement, viz : “ You have given me m business, as per your estimate, $3000.” In a subsequent part of the same letter, in summing up what he had of his father, was this statement, to wit “Start in business $3000.” On the cross-examination of William A. Sanford, he was shown the letter in which were the foregoing statements, and he was then asked what constituted the $3000 start in business, mentioned in that letter. To which the plaintiff objected, that the witness was incompetent to testify, as it was a cransaction between him and his father, about which he had not been examined. The referee sustained the objection, and the defendants excepted. The defendant, then offered to prove by the same witness, that this $3000 was not money, or property, but merely recommendations of the witness to credit with persons of whom his father had formerly purchased. To which there was . the same objection, ruling and exception; as last above mentioned.
I am of the opinion these rulings of the referee were / erroneous. If the $3000, mentioned in the letter of William A. Sanford, was not money, or property, the same was not an advancement to him. The letter, in which the admission was made, was proved by the witness on his direct examination by the plaintiff’s counsel; and matters touching the letter were proved by such counsel, that it would have been difficult, if not impossible, to prove by any other witness. Having proved such admission by this witness, the witness had the right, (being a defendant in the action,-) to explain the admission, though it was in writing, and to entirely do away with its effect against him. If the plaintiff had proved by the witness that he had made a similar oral admission to the *304deceased, there could be no doubt that the witness would have had the right to explain the admission. And I think the same principle entitled the witness to explain the admission in his letter proved by him.
A year, or two prior to the death of the deceased, the defendant William . A. Sanford gave a promissory note, for the payment of $5000, to the order of the deceased and his wife, two years from its date, with interest This note was in the possession of the, deceased at the time of his death. The widow of the deceased presented the note to the appraisers of the personal property of the deceased; and it was appraised as part of his personal estate. The widow testified that she did not know, and "bad not been advised, until after such appraisal was made, what her rights were in regard to the note. It was proper for her to testify to those facts.
The legal presumption was, that the note belonged to the widow, as survivor of the deceased, and was her property, as against all other parties to this action; and it was immaterial whether the consideration for the note was advanced by the deceased, or his wife, to the maker. (Borst v. Spelman, 4 Comst. 284. 16 Mass. 479.)
By the will of the deceased he devised to- his widow^ a dwelling house; also certain personal property, and \ $10,000 in cash; and the will recited, that, “ all which is to be accepted and received by her in lieu of dower, and every and all claim upon my estate.”
Samuel B. Gordon was sworn as a witness for the defendants. He was an attorney and counsellor, and was employed by the deceased to draw his will, and did draw it. Previous to drawing the will, he conferred and advised with the deceased about the terms of his will, and the bequests he wanted -to make. The defendants, William A. and Joseph H. Sanford, offered to prove by Mr. Gordon, that in giving instructions for drawing the will, the deceased first directed him to insert a bequest of *305the aforesaid note, and $5000, to his wife. That he, Gordon, suggested to him that there might be some difficulty about the note, and advised him to make a bequest of $10,000 to his wife, in lieu of the proposed bequest. That the deceased consulted with his wife in regard to it, and with her consent and concurrence directed him, Gordon, to insert in his will a bequest of $10,000 personal, in lieu of the proposed bequest, and in full of all claims on his estate, which was done.” To which offer the plaintiff objected ; 1st. That the communications are privileged, having been made by the deceased to the witness, in the course of his professional employment as an attorney. 2d. That the terms of the will are plain and cannot be explained by parol. 3d. That the evidence is immaterial, incompetent and inadmissible. The referee sustained the objection, and the defendants, William A. and Joseph H. Sanford, excepted.
The decision of the Court of Appeals in the action brought on the note by Maria D. Sanford, (widow of the deceased,) against William A. Sanford, (maker of the note,) shows that the second and third grounds of objection above stated were untenable. (See opinion by Peckham, J., MS.) And that decision establishes the fact that the evidence offered was competent and admissible, in connection with other evidence that had been given. The only question, therefore, arising on this offer is, whether the facts and circumstances therein mentioned were under the seal of professional confidence, which the witness could not disclose for the benefit of the defendants, who offered to prove them. This question is unlike either of the questions in the cases relied upon by the plaintiff’s counsel to sustain the decision of the referee. (See those cases in 3 Barb. Ch. 528, 595; 18 N. Y. 546.) The case is not like that of Parker v. Carter, (4 Munf. 273,) in which it was held, that communications made to an attorney employed to draw a deed were privileged. I will *306remark that, in this case, the widow of the deceased did not object to the evidence offered to be given by Gordon. The substance of the offer was to prove, by Gordon, an agreement, made between the deceased and his wife, and what was said by, and between them, and to him, in making the agreement; and that Gordon drew the will of the deceased in conformity with the agreement. The controversy in the action, is between the widow and heirs at law of the deceased; all of whom, except the plaintiff, were devisees named in the will of the deceased. I am unable to see any legal objection to the defendants, William A. and Joseph II. Sanford, proving the agreement by the attorney Gordon, in whose” presence it was made. If he had been permitted to testify to it, he would not have revealed any privileged communications, or broken any seal of professional confidence. He would have proved an agreement, in which the' widow of the deceased, and the plaintiff, were interestéd on one side, and the defendants; William A. and Joseph H. Sanford, sons of the deceased, were interested on the other side. In other words, the widow of the deceased was interested' against his estate to decrease it, and the defendants, William A. and Joseph H. Sanford, were interested to increase it to the amount of the $5000 note claimed by the widow. It seems to me there can be no doubt that the referee erred in rejecting the offer in question.
In ascertaining the interest the plaintiff has in the estate, left by the deceased, the case is to be regarded as though the deceased had died intestate, instead of leaving a will. (2 R. S. 65, § 49.) The rule for ascertaining the rights of the plaintiff and defendants is stated in Mitchell v. Blain, (5 Paige’s Ch. 588,) and I need not here state it again.
The allowance of costs to the plaintiff, was a matter within the discretion of the referee.
But, for the errors of the referee I have pointed out, *307the judgment in the action should be reversed, and a new trial granted, costs to abide the event.
[Argued at the Broome General Term, in September, 1871,Judgment reversed.
before Miller, P. J., and Parker and Balcom, Justices. Decided by the same Justices, at the General Term, in the Third Department, at Albany, January 2, 1872.]