dissenting. The court erred in rejecting proof of the declarations of the testator made to the nominated executor of his will, at the time testator delivered this instrument to him with instructions to file the same with the ordinary, to the effect that the testator wanted what was due him by each of his children deducted from what was coming to such child under his will. This declaration of testator was admissible to show that the debts due by his children to him had been changed from debts to advance*8ments. Donations from affection, and not made with a view of settlement, nor intended as advancements, shall not be accounted for as such. Civil Code (1910), § 4052. Yet an absolute gift may be changed into an advancement, with the assent of the heir to whom the gift was made. Harper v. Parks, 63 Ga. 705; Wallace v. Owen, 71 Ga. 547. In West v. Bolton, 23 Ga. 531, this court held: “The sayings of a testator . . that certain notes, &c., on a son-in-law, represented advancements made by him to that son-in-law, are sayings against the testator’s interest, and this although the notes may be out of date. They are, therefore, admissible as evidence against the representations [representatives?] of that son-in-law.” In Bransford v. Crawford, 51 Ga. 20, this court held that the declaration of an intestate that certain notes which he held on his son were not held by him as debts against his son, but as advancements to him, are admissible in evidence in an action by a grandchild for her share in the grandfather’s estate. In view of these rulings I think this evidence was admissible to show that the debts held by the testator were originally intended by him as advancements, or had been changed to advancements, to them; and the court erred in rejecting the same. This ruling does not conflict with the principle that parol evidence can not be received to show that legatees are to account for advancements. In re Lyon, 70 Iowa, 375 (30 N. W. 642); 2 Woerner’s Am. Law of Adm. § 553. The testament must disclose the intention of the testator to charge legatees with advancements. Whether such advancements can be set off against the legacies given by the testator to his children is the vital question in this case, and will be next considered.
As a general rule the doctrine of advancements is not applicable in cases of testacy. Generally this rule applies only in cases of intestacy. Huggins v. Huggins, 71 Ga. 66; 2 Woerner’s Am. Law of Adm. § 553. “The doctrine of bringing advance’ ments into hotchpot has no application when there is a will which does not require it to be done.” Brewton v. Brewton, 30 Ga. 416. Undoubtedly testators may require legatees to account for all money and property received by them, whether as loans or advancements. West v. Bolton, 23 Ga. 531; Nolan v. Bolton, 25 Ga. 357; Jordan v. Miller, 47 Ga. 346; McNeil v. Hammond, 87 Ga. 618 (13 S. E. 640).
*9In the second item of his will the testator declares that his three daughters, Kate, Nell, and Mary Jane, and his two sons, Will and George, owe the estate the respective amounts specified in this item. What was his purpose and intention in making this declaration ? In the construction of wills the court will seek diligently the intention of the testator, and will give effect to the same as far as it may be consistent with the rules of law. Civil Code (1910), § 3900. In Eichelberger’s Estate, 135 Pa. 160 (19 Atl. 1014), the Supreme Court of Pennsylvania held that “Where a will provides that the testator’s estate shall be divided among his children 'share and share alike,’ and then states the amount in which each child is indebted to the estate, such debts should be deducted from the respective legacies.”
It is inconceivable that testator in making this declaration had any other purpose and intention than to charge these daughters and sons with these respective amounts, whether as advancements or as debts. Such declaration without such purpose would have been vain and ineffective. The only other purpose of the declaration would be to change these debts into advancements and to charge each child with the amount specified as an advancement; and to require the children to account for these advancements in the distribution of the estate. So I am of the opinion that it was the purpose of the testator to charge these children with the debts which he, in this item, declares they owe his estate. See Hall v. Davis, 3 Pick. (20 Mass.) 450.
There is another limitation of, and exception to, the rule that the doctrine of advancements does not apply in cases of wills. This exception is, that, where the will provides that the estate shall descend as in case of intestacy, advancements are reckoned as if there were no will. 2 Woerner’s Adm. § 553; Stewart v. Stewart, 15 Ch. D. 539; Raiford v. Raiford, 41 N. C. 490; Trammel v. Trammel, 148 Ind. 487 (47 N. E. 925). The will of testator does not expressly declare that his property shall descend as in case of intestacy; but in the third item of his will he gives all of his property to his children, to be sold, and the proceeds to be equally divided among them. In other words, he disposes of his property just as it would have gone under our statute of distribution. While he does not in so many words say that it shall descend as it would if he had died intestate, his will expressly makes it go *10as it would have gone if he had so died. Acts speak louder than words. Anyway, by parity of reasoning, the principle announced in the cases cited applies in this case; and it follows that the legatees should be required to account for these debts, whether they are to be treated as advancements made to them by the testator, or as subsisting debts.
What is the meaning and effect of the declaration of the testator in the second item of his will, that he had taken fifteen feet from the front of Will Bender’s lot and added it to John Bender’s lot, making the latter lot have a frontage of seventy-five feet, and that he had made to John Bender a deed to it? Here the testator had given and conveyed by deed property of his son Will to his son John. When a testator has affected to give property not his own, and has given a benefit to a person to whom that property belongs, the devisee or legatee must elect to take under or against the instrument. Civil Code (1910), §§ 3910, 4610. The clear purpose of the testator was to make the son Will ratify this disposition of a portion of his lots, or to refuse to take anything under the will.
On the hearing of the proceeding to probate the will the court directed the jurjr to return a verdict finding against the caveators, that the instrument propounded be set up and established as the last will of the testator, and “that the recitals in the will as to the debts due by the various children to the testator are not conclusive upon the parties.” It is insisted by Kate and Mary Jane, daughters of the testator, that the will should be construed, as the verdict and judgment propounding the same directed; and that under such verdict and judgment the recitals in the will as to the debts due by the various children are not conclusive upon the parties. The court of ordinary in probating wills merely adjudicates the factum of the will — devisavit vel non — whether the paper propunded is or is not the last will and testament of the deceased. All questions of construction of the instrument should be left for future direction in the proper court. Finch v. Finch, 14 Ga. 362; Wetter v. Habersham, 60 Ga. 193 (7); Thomas v. Morrisett, 76 Ga. 384; Trustees v. Denmark, 141 Ga. 390 (81 S. E. 238). In trying such a proceeding on appeal, the superior court can not go beyond the jurisdiction of the court of ordinary, and can deal with no question except such as could have been *11raised in the primary court. Greer v. Burnam, 69 Ga. 734; Hufbauer v. Jackson, 91 Ga. 298 (18 S. E. 159). The jurisdiction of the superior court on the appeal is limited to the issue of devisavit vel non. Field v. Brantley, 139 Ga. 437, 439 (77 S. E. 559). On such proceeding the superior court is without jurisdiction to construe the instrument propounded as a will. The superior court was without jurisdiction 'to direct a verdict that the recitals in the will as to the debts due by the various children to the testator were not conclusive upon the parties, and to render judgment on such a verdict. But the verdict as a whole is not vitiated by reference to this irrelevant matter, nor by any misdirection of the court in reference thereto. What is said in the verdict and in the judgment on this subject is mere surplusage, and is to be so treated. Knapp v. Harris, 60 Ga. 398 (4), 404.
With what amounts shall these children be charged? “A memorandum of advancements, in the handwriting of the parent, or subscribed by him, shall be evidence of the fact of advancement, but shall not be conclusive as to the valuation of the property, unless inserted as part of testator’s will or referred to therein.” Civil Code (1910), § 4053. We are not dealing with a mere memorandum of advances in the handwriting of the parent, or subscribed by him. We are dealing with the will of the testator in which he recites that certain of his children are indebted to him in certain amounts. If these amounts are to be treated as advancements, then the amounts thereof are conclusive upon the legatees, the same being fixed and stated in testator’s will. If we treat them as debts due by the children to their father, the statement of such debts in the will is conclusive as against the children in the distribution of the estate. Eiehelberger’s Estate, supra. As was said in the case last cited, “The fact of the indebtedness of each child, and the amount thereof, was a matter within the personal knowledge of the testator; and he had a right to say that the indebtedness of his children, as he stated it in his will, should be deducted from their shares. Even if a mistake had been made, I am unable to see how it could be corrected upon distribution, without making a new will for the testator. . . A legatee is but a volunteer, at best, and must take the bounty of "the testator upon the terms in which it is bestowed.” So each of the children of the testator should be charged with the amount which the testator declares in item two of his will to be due by such child.
*12It follows from the above rulings that the trial judge erred in his construction of this will. In the distribution of this estate, every child of the testator should first account for the debt or advancement, and for the amount thereof fixed in testator’s will. If such debt or advancement amounts to or exceeds the share received by the unadvaneed child, such advanced legatee shall receive nothing further from the estate. If the advancement or debt is less, then each unadvanced or less advanced legatee shall first be made equal to such advancement before a general and equal distribution is made. The son John Bender must elect to take or not to take under the will. If he elects to take under the will, he will give effect to the conveyance by the testator of that portion of his lot which the testator by deed conveyed to his brother. If he elects not to take under the will, then he will not be entitled to the legacy given him under the will.
For the reasons above stated, I feel constrained to dissent from the decision of the majority.