(dissenting):
Henry Lawrence, the plaintiff’s testator, departed this life on the 7th day of March, 1872, leaving a last will and testament, which was made March 14, 1869, and which has been duly proved and admitted to probate by the surrogate of Kings county. This will contains the following provision :
“ Tenth. It is my will, and I hereby direct that any advancements hereafter made by me to or for account of my said children, or either of them, and evidenced either by entries in my boobs 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.”
James Lawrence and Seabury Lawrence were the executors of this will, and when they presented their final account to the surrogate of Kings county, Eliza Lindsay, a daughter of the testator, objected to the accounts filed, because the executors had not charged the legatees with advancements made to them by the testator.
This objection presented a question which arose out of the following facts: Henry Lawrence, the testator, was carrying on business with his sons under the firm name of Henry Lawrence & Sons. After the will was made, the testator and his two sons, Samuel L. Lawrence and Frank Lawrence, each had individual accounts on the books of the said firm. On the 13th day of December, 1871, there was a balance due from Frank Lawrence to the firm of $10,551.57; on the same day there was a balance due from Samuel L. Lawrence to the said firm of $2,287. On that day the testator charged the amount so due from Frank and Samuel L. to his own account on the books, and, at the same time, credited the same amounts respectively to their accounts on -the said books, and thus balanced the accounts of both of them. The entry of the credits-in each of the accounts of the sons is by “ Henry Lawrence.”
On the 2d day of May, 1870, Henry Lawrence, the testator, charged himself in the same book, “ Check for Samuel L., $10,500.” This amount is not charged to Samuel L. Lawrence on the books at all, although on the same day there was a charge made against him on *645the books of fifty dollars. These facts, it is claimed, show advancements of these sums to these two sons of the testator. The surrogate has allowed this claim, and the appeal in this case is from his decision on that point.
The word advancement is an old word in the law, and has a well known legal signification. It signifies a provision made by a parent for his child, of money or property; a giving, by anticipation, the whole or a part of what it is supposed a child will become entitled to.
The testator has used this word, and must be held to have used it in its usual sense. He has declared it to be his will that any advancements made by him to either of his children, and evidenced either by entries in his books of account or by any written memorandum signed by either of his children, should be deducted from the amount that such child would be entitled to under the will, if no advancements had been made.
This provision qualified all the legacies with a condition that if the testator should in his lifetime make advancements to the legatees, and should leave evidence of his intention that such advancements were on account of such legacies, either by entries in his books of account, or by written memorandums signed by his children, then such advancements should be deducted from the legacies.
It would have been perfectly competent and proper, if the testator had declared that any advancement to a legatee should go in satisfaction of the legacy, and if he had done so, then any simple gift made by him might have that efiect, even though intended as an additional gratuity. The proper construction of this clause of this will, is that, the testator intended to leave himself at liberty to make such subsequent gifts to his children as he might desire, and to put a particular mark upon such gifts as ho intended as advancements, by book entries or written memorandums. It is as if'he had said : I intend hereafter to make advancements to my children, some of which I intend as additional gifts, and some anticipated payments of their legacies; the latter will be evidenced either by entries in my books of account, or by written memorandums signed by my children. (Langdon v. Astor's Executors, 16 N. Y., 29.)
Tin’s being so, there is no pretense of any written memorandums, and the question is: Are the entries in the books of account *646any evidence of advancements? It must be conceded that the books of the firm were the testator’s books for all the purposes of this consideration. Let it be borne in mind that neither of the three sums in question are anywhere charged on these books to Frank or Samuel L. Lawrence. On the contrary, the two first sums are credited to them respectively, and the only charge made of these sums are charges against the testator. The sum of $10,551.57, credited to Frank Lawrence, and the sum of $2,287, credited to the account of Samuel L. Lawrence, were evidently so credited to balance their accounts, for they are the precise amounts necessary to do it. The natural signification of this act is that the testator intended to make them a donation of these amounts, and, as he has not made any charge against them on his books of account, nor left any evidence on his books of account that he intended this gift as an advancement, the natural presumption is, that he intended these sums as an additional gratuity.
The testator knew that he had made this will, and knew its provisions in relation to advancements, and it is but natural to suppose that if he had intended these two sums as advancements he would have made some unmistakable entry in his books of account that would have evidenced such intention.
This last remark applies wi th equal force to the sum of $10,500 which he let Samuel have on the 2d day of May, 1870. No charge is made of that against Samuel anywhere, and the conclusion seems irresistible that it was intended as a gratuity. Let it be admitted that these several sums were advancements by the testata'tor, yet it does not follow that they are to be deducted from their legacies. The testator has said what advances were to be so deducted — they were to be advances made by him to his children, and evidenced in one of the two ways provided.
If they were not so evidenced they were not to be deducted. No other evidence could be received. The will prevents the establishment of a legal advancement in any other way.
The decision of the surrogate in allowing the objection to the account was wrong, and his decree must be reversed.
Present' — Barnard, P. J., Gilbert and Dykman, JJ.Decree of surrogate affirmed with costs.