The court of probate, in finding the advancements , which Titus Nettleton, deceased, had made to his chil*545dren, ⅛ his life-time, preparatory to ordering a distribution of his intestate estate, treated certain specific legacies and devi- - ses to .said children, as advanced portions ; and thereupon ordered said estate to be distributed, upon the basis of making, all his children equal sharers in the whole estate, testate and intestate.
This was erroneous. The effect of it was, to distribute the estate precisely as if no will had been made : and such would be the effect, in all cases, where the property given to one child by will, is not of greater value than a share of one of the children not advanced, in the intestate estate; and thus the object which testators usually have in making wills, would be defeated. Besides, the statute of distributions confines the advanced portions of children, to be found of such estate only as they received in the “ life-time” of the deceased. Stat. 234. (ed. 1838.) But property given by will the devisees cannot take, till the will becomes operative, by the testator’s death.
One of the reasons for the appeal, is, that the judge of probate, who issued the order appealed from, was the uncle by marriage of one of the devisees, who was also an heir at law of the deceased. This has not been much insisted on, as sufficient to disqualify him from acting in the settlement of the estate : and it is enough to say, that this relationship is not one of the causes mentioned in the statute as disqualifying a judge of probate. Stat. 128. (ed. 1838.)
We should not, therefore, for this cause, reverse the proceedings. But, for the former reason, we advise the superior court to disaffirm the decree of probate.
In this opinion the other Judges concurred.Decree of probate disaffirmed.