The first question arises upon the advancement to the complainants by the testator. And independent of the point, whether thé bond was intended as a gift, or as a portion to Mrs. Thompson ; it is claimed that the statute relative to advancements, is not applicable to this case..
-The result of the former decree is, that Daniel Carmichael died without making any valid disposition of his real estate, or of the mass of his personal property. He left a will, which is valid so far as it bequeaths a small specific legacy to each of his two sons, and gives to his wife similar legacies, together with a sum sufficient for her support, charged upon his whole property.
The statute law exclusively, regulates the subject of advancement. This cáse does not fall within the provisions contained in the article of the revised statutes, relative to making distribution to the next of kin, because there is real estate which descended to Carmichael’s heirs. (2 R. S. 97, 98, § 76 to 78.)
In the chapter “ Of Title to Real Property by Descent.” (1 R. S. 754, § 23 to 26,) it is provided, that if any child of an intestate shall have been advanced by him, &c., the portion shall be estimated in the division and distribution of the real and personal estate of the intestate.
It is contended on the one side, that these provisions apply where there is an intestacy pro tanto ; and on the other side, that they are not applicable at all where there is a will.
In the first place it is to be observed, that the words used in the revised statutes, are the same as those in the parallel statute published in the revised laws of 1813; and that statute had been continued without change in this respect, from its first enactment in this state on the 20th of February, 1787. (1 Greenleaf’s Laws, 363, § 3; 1 Rev. Laws, 313, § 16.) Our first act was taken from the statute 22 and 23 Car. 2, ch. 10, made perpetual by the act 1 Jac. 2, ch. 17, and its language on this subject, is the same.
We may therefore look for our guidance to the construction put upon the act of the 22 and 23 Charles.
It appears to have been settled in England, soon after the passage of the law, that the child who had been advanced, was not required to bring his advancement into hotch-pot, except in the case of a total intestacy. Vachell v. Jeffereys, (Prec. in Ch. *128169,) and Cowper v. Scott, (3 P. Will. 124,) appear to be direct authorities on the point; and they are confirmed by Sir William Grant’s opinion in Walton v. Walton, (14 Ves. 324.) This is also laid down as good law in 3 Bac. Abr., Exec, and Admin. K. (And see Hawley v. James, 5 Paige, 450, 451—per Chancellor ; and Wheeler v. Shear, Mosely’s R. 301, 304.)
The same thing was decided under the statute of distributions in South Carolina, in a series of cases extending from 1802 till 1833. Sinkler v. Legatees of Sinkler, (2 De Sauss. Eq. R. 139,) which was a case of partial intestacy as to' personal estate ; Snelgrove v. Snelgrove, (4 ibid. 274, 291,) where there was a total intestacy as to the real estate, through a defect in the execution of the will, one of the witnesses being a devisee, but the will was valid as to the personalty; Newman v. Wilbourne, (1 Hill’s Chy. R. 10 ;) and McDougald v. King, (1 Bailey’s Eq. R. 154.)
I was referred to two decisions in Tennessee as being adverse to these. In one, devisees under a will were required to bring their devises into hotch-pot, in order to obtain a provision for a posthumous child, who was otherwise unprovided for.
In the other case, on a division of after acquired lands which did not pass by the will, the children of a second marriage, who by the will took all the lands the testator had at its date, were compelled to bring those lands into hotch-pot, in order to share in the former.
Under our statute I do not think that a provision by will, can be deemed an advancement.
On the statute itself, (1 R. S. 754,) a total intestacy appears to be contemplated. It is true, that in some of the previous sections of the same chapter, the word intestate is used as correlative to the words in the first section, person who shall die without devising real estate. But this is evidently to be restricted to its connection with the subject matter, that is to lands undevised. A person who had made a will, and disposed of all his personal property, would nevertheless be an intestate under those previous sections, as to the portion of his lands undevised, however insignificant. The twenty-third section commences a new subject. It is not “ the intestate,” or “ such intestate referring to what goes before; but the words are, (< an intestate,” and the *129provisions relate to personal estate which has not before been mentioned in the chapter, as well as to real estate. It is used as a general term, without qualification ; and as such, its meaning is well known and clearly defined. Both in its legal and popular sense, it means a person who dies without making a will.
The same language “ an intestate,” without addition or qualification, is used in the revised statutes, in the article relative to granting letters of administration. In short, a man who dies leaving a will, is not an intestate.
This case must be decided upon general principles, and not upon its peculiar features. It may be very plain to me, that this testator if he were now to make his will anew, would compel his eldest daughter to account for the bond of $1000, towards her distributive share, or exclude her entirely. But the same construction, which in this case would probably approximate towards his intention; in another case might utterly frustrate the intention of the testator. Where one has advanced a part of his children, and then by will devises property to the residue, leaving other property undisposed of; it is a legal and reasonable presumption, that he intended the latter to go to both classes of his children equally, if any of it remained at his death. As to one class he has been his own executor. As to the other, he has by his will placed them upon an equal footing with the first class.
Now, if the defendant’s construction of the statute is to prevail, the clear intent in the case put. will be utterly destroyed. The second class of children cannot be required to bring their legacies and devised estates into hotch-pot, for those are in no sense an advancement. And they can compel the first class to bring in and divide all the property they received from their father in his life time, or else exclude them from the whole estate which was not disposed of by the will.
The same consequence will ensue as to after acquired lands, where the will do ds not dispose of them; and this is a case of frequent occurrence. So of any undisposed surplus. Again, take this case. There is a specific legacy to two of the children. They are trifling, it is true, but if they had been a valuable library and a service of plate, the principle would be the same. How can the courts arrive at the equality which is the foundation of *130the statute as to advancements, where the testator has given to one and withheld from the others 1 They cannot bring legacies into the fund for an equal distribution; and in every case of partial intestacy, the courts would be quite as likely to overthrow the intent of the testator by interfering in the mode which is sought here, as they would to carry it into effect.
The safer course it appears to me, is to follow the plain terms of the statute, and the English decisions; making no constructive intestacies, but leaving it to the legislature by more full enactments, to remedy the injustice, if any be found to exist.
In regard to the annual allowance made to the widow for her reasonable support; I am satisfied with the decision of the master. What is reasonable for her, is not to be determined by the amount necessary for her bare subsistence. Reference is to be had. also to the extent and income of the estate. And I think it is proper that she should be enabled to live with and take care of her small children.
Under all the circumstances, I think the allowance is reasonable. (a)
The objections to the master’s report are therefore overruled. And in all other respects the decree will conform to the complainant’s points.
See Tolley v. Greene, 2 Sand. Ch. R. 91.