The superior court reserved for the opinion of the supreme court of errors, the question, whether the decree of probate accepting the distribution, shall be affirmed or reversed ?
In the view of the facts presented, two points deserve consideration. — 1. Is the distribution to the widow, Mercy Collins, of one third of 13,058 dollars 45 cents, viz., 4352 dollars, 82 cents, correct ? This, upon very plain principles, must depend on the will. The first clause, and which contains the devise to Mercy, is in these words: “ To my beloved wife, Mercy, I give and bequeath the use of one third of .my real and personal estate, during her natural life.” To ascertain her share under this will, the distributors added to the estate left by the testator, and inventoried as such, viz., 11580 dollars, 69 cents, the sum of 1467 dollars, 76 cents, being a sum found to have been advanced to the daughter, Lucy, the second devisee in the will, and distributed to Mercy 4352 dollars, 82 cents, one third of 13,058 dollars, 45 cents, thus making the estate left, and the advancement to Lucy, the basis of the share of one third to the widow.
This, in my judgment, was erroneous. The devise to Mercy, is very explicit, and contains no ambiguity : — it is, of one third of hjs real and personal estate. Now, that can intend only the estate owned by him, at hjs death, aqd cannot include a sum advanced to Lucy. That was, in no sense, his estate : — it had been transferred to her, during his life, and was, to every intent, her property. Stearns & al. v. Stearns & al. 1 Pick. 157.
*5By this mode of distribution, the appellant, Caroline, is injured, because it takes from her, and the other devisee, as much of the estate, as it gives to Mercy, the widow, beyond what it ought to give ; and, of course, leaves less for distribution to them.
Here, it is insisted by the counsel for the appellees, that the testator intended to treat her as an heir, and to settle his estate upon the widow and daughters on the same principles ; and that, as they insist, the advancement of 1467 dollars, 76 cents, shall be brought into hotchpot, in ascertaining the daughters’ shares ; so here, he is to be presumed to intend the same thing in relation to his wife. I see no ground for this supposition. There is not a word in the will warranting the idea. On the contrary, the language is express, to give to her one third of his estate, which cannot comprise property of which he had become divested, by the advancement. In this respect, the distribution ought not to have been accepted ; and the decree of the court of probate, ought to be so far disaffirmed.
2. In ascertaining the daughters’ shares, is the sum of 1467 dollars, 76 cents, advanced to Lucy, to be put into hotchpot ? This question must be answered in the affirmative. The testator has used the word advanced, a technical term, well known to the common law, and to our statute of distributions. 2 Black. Com. 190, 1. 517. Stat. 207. When used in relation to the distribution of estates, it always intends, that, what has been given to a child, shall be brought into hotch-pot : and so, it ought here to be construed. Otherwise, the testator must have intended a great inequality in the portions to his daughters ; an idea, receiving no countenance in the will.
It, however, is strenuously urged, that the words, “ deducting therefrom” employed in the devise to Lucy, show that the testator intended, that the estate left, after the devise to Mercy was deducted, should be divided into two parts, and that Lucy should take one half, subtracting the 1467 dollars, 76 cents ; and that the other half, with the 1467 dollars, 76 cents, should pass to Caroline, under the word remainder. It is not to be believed, that the testator so intended. The words “ deducting therefrom,” may be satisfied by a different construction, consistently with the use of the word advanced, in its appropriate signification. The share of Lucy is diminished, by bringing the advancement into hotchpot; and in this sense, it is deducted from, as expressed In the will.
*6I would therefore advise, that the superior court disaffirm {jjg decree conformable to these principles.
Hosmer, Ch. J. and Lanman, J. were of the same opiniou.