concurred as follows:
I concur in the judgment of the Court in this case, as I understand it, and as the majority of the Court-has informed me they mean it.
There is no evidence in the record that Iverson Miller had received $1,200 00, as an advancement, and it was improper to charge the minor with that sum, as such.
Under the will, the legatee, Iverson, was entitled to choose the four lots, as a part of his share, at a fair valuation, and the guardian having done so, with the consent of the executor, at the valuation fixed by the appraisers, I think that was the price at which the lots were to be charged to him. The executor is concluded by this consent, unless he charges and proves that he consented under a mistake, and through fraud or accident. But if these lands, at this valuation, are more than the distributive share of this minor, the heirs-at-law, or the executor, under proper charges in the bill, and proof to sustain them, can compel the guardian to pay the overplus.
Taking the will altogether, it was the testator’s intent to divide his property equally between the legatees, charging each one with his advancements. And the right of choice, in the several items of the will, was only a right to take certain specific property, at its value, as a part of the equal share, to which each was entitled.
See Jourdan v. Miller, ante, p. 51, and foot-note.