The question presented arises under the last will and testament of Henry Lawrence, deceased. The testator died in March, 1872, and the following is the tenth clause of his will:
“ It is my will, and I hereby direct that any advancements hereafter made by ine to or for account of my said children or either of them, and evidenced either by entries in my books of account or by any written memorandum of acknowledgment, signed by such child or children, shall be deducted from the amount or be charged upon the share or portion (as the case may be), to which such child •or children respectively would be entitled under the provisions of this my will, if no such advancement had been made.”
The will was executed on the 4th of March, 1869. The testator and his sons were partners in business under the name of Henry Lawrence & Sons. After the date of the will Samuel L. Lawrence .and Frank Lawrence, two of testator’s sons, had individual accounts with the firm of Henry Lawrence & Sons. The balance due from Frank Lawrence to the firm on the 30th of December, 1871, was $10,551.57. On that day the testator charged that amount to him self and credited the same amount to the account of Frank Lawrence, thus balancing the account.
On the same day the individual account of Samuel L. Lawrence showed a balance due from him to the firm of $2,287. The testator also charged this amount to himself on the books of the partnership and credited the same amount to the account of Samuel L. Lawrence, thus balancing his account.
The credit in each case was “by Henry Lawrence.” On the 2d of May, 1870, the testator charged himself “Check for Samuel .L.” $10,500, in the cash-book of the firm, and on the 31st of May, 1870, this amount with other small sums was charged to his account on the ledger of the firm ; no charge of the same amount is made .against Samuel L. Lawrence. He does not appear to have had an. open account with the firm at this date, but whether he did or not, no charge was made in any way, further than as above stated, against Samuel L. Lawrence for the item of $10,500. The surro*643gate allowed all the items as advancements, and this appeal presents for review this decision.
It was proven that the testator kept no individual books of account. I think the books of the firm, of which testator and his sons were members, testator’s books, within the meaning of the will. He kept none individually; to what books could he have referred other than his partnership books with his sons? In a certain sense they were testator’s books and might be properly called so. It would be a harsh and narrow construction to hold that an advancement, evidenced in partnership books, was invalid because the will called for such evidence in “ my ” (testator’s) books. If the partnership books are sufficient books under the will to make the entry therein, I see no reason to doubt the accuracy of the surrogate’s conclusion as to the first two items. The father paid the sons’ debts to the firm,.doubtless with the sons’ knowledge and assent, as the books were before them in which the entry was made. It was a payment “for account” of the children, and was made by testator, as evidenced by the entry in the books.
As to the item of $10,500 to Samuel L. Lawrence, in view of the circumstances of this case, I think it was properly held to be an advancement. It was charged to testator as a “check for Samuel L.he was a partner. The entry was made in the usual course of business in the partnership books. The executors were also partners. No evidence was given to explain the entry or the transaction. The book-keeper was not called. I take it to be clearly established that Samuel L. Lawrence received from his father this large sum of $10,500 in May, 1870, and that there is evidence of this payment to him by the father in the books of account. That from the books alone there is a legal demand, in the absence of all explanations, established in favor of the testator against his son Samuel for this amount. Without the will it would be a debt. With the will, and in the absence of all explanations, it is an advancement.
The clause in question does not prevent the establishment of a legal advancement by other evidence than entry in testator’s books, or by written acknowledgment of the parties receiving the advancement.
Judgment affirmed, with costs.