Dissenting Opinion by
Mr. Justice Allen M. Stearns:The majority, in my opinion, has incorrectly applied the Pennsylvania Apportionment Act of July 2, 1937, P. L. 2762, sec. 1, 20 PS 844, which provides that unless testator directs otherwise in his will the estate tax of the United States “. . . shall be equitably prorated among the persons interested in the estate to whom such property is or may be transferred, or to whom any benefit accrues. . . .”
The reason for the enactment and its history is related by Judge Klein, of the Philadelphia Orphans’ Court, in Harvey’s Estate, 47 D. & C. 12, the proration was applied in Harvey’s Estate No. 2, 49 D. & C. 440, which this Court affirmed in Harvey Estate, 350 Pa. 53, 38 A. 2d 262. In summary, prior to the Aci, the entire federal estate tax was paid out of the residue. The specific devisees and legatees paid nothing. This proved a hardship upon the residuary beneficiaries since, in most instances, such beneficiaries were usually found to be testator’s widow, children' and his *618nearer and more dependent relatives. By the proration Act each beneficiary, unless exempted, paid his proportionate share of the federal tax.
Here testatrix did not “direct otherwise”. Wherefore the proration Act applied. In Article Nine, however, she exempts all taxes for property disposed of in Article Five, which taxes are directed to be paid out of the residue.
The only question in litigation concerns the method of apportionment of federal estate taxes in respect to the distribution of the residuary estate.
Lela H. Edwards, the testatrix, died seized of real and personal estate assessed for federal estate tax purposes at approximately $16,000,000, against which a tax Avas assessed and paid by the executors in the amount of $10,854,884.85. The balance for distribution is shoAvn to exceed $4,000,000. By her professionally drawn will, consisting of nine items and a codicil, testatrix, after making bequests and provisions not involved in this litigation, devised real estate, Walnut Hall, near Lexington, Kentucky, (subject to a charge of $250,000 hereinafter referred to) and bequeathed personal property to tAVO of her children, Harkness and Katherine. She devised and bequeathed her entire residuary estate equally to her four named children: Martha E. Lazear, Lela E. Cook, Harkness Edwards and Katherine E. Nichols. In devising Walnut Hall to her two. children, Harkness and Katherine., testatrix directed in Article. Three of the' will that Harkness and Katherine’ should be charged with having received $250,000 [‘on account of [their] share of the residue of my estateIn disposing, of the residue testatrix devised and. béqueátliéd same to her four, named children. In sp charging the' shares of the two named, children. with ,$250,000, testatrix' explains.’.that *619it is done “in order to produce equality among my four children.”
The effect of this testamentary scheme is clear. The two children, Harkness and Katherine, are devised the real estate, but take it subject to a $250,000 charge. It follows that what they have inherited is real estate upon which there is said charge. Thus the value of what passes to them is the value of the real estate less the charge. The amount of the charge passes to the other two children. This is true because the $250,000 is to be paid out of the shares of the two devisees. Consequently, in my opinion, the two devisees should only be charged, by the tax proration, with the net value of what passed to them, viz.: the value of the real estate (so appraised for federal estate tax) less $250,000 and their share in the residue. The other two children should be required to pay their proportion of estate tax on whatever else they inherited, plus the $250,000 charged against their brother and sister. Thus each beneficiary pays his proportion of estate tax on whatever he receives. In the words of the Act, they are the persons “to whom such property is .. . transferred, . . .”
In seeking to attain what the majority regards as equality among testatrix’s four children, in my opinion, it has improperly considered the taw burden. It erroneously deducts the estate taxes before division, adds the $250,000 to the net estate, divides by four and deducts $125,000 each from the shares of the two children-devisees. This is clearly error.
The quantum of the gift and the amount of tax payable are two distinct matters. In Wahr Estate, 370 Pa. 382, 88 A. 2d 117, we said (p. 387) : “. . . if a testator directed that his estate be divided into two equal shares, one of which he bequeathed to a child and the other to a collateral• relative, cOuld it be..logically..con*620tended that the word ‘equal’ also related to transfer inheritance tax? We think not. . . (italics supplied)
Despite the well established rule that a distributee pays his share of prorated federal estate taxes on what he inherits, the erroneous idea of the majority of the court below that the result reaches a more proximate equality of distribution . . .” has, unfortunately, percolated into the majority opinion of this Court. The error of this view is that no court has the right to substitute its idea of distribution in the place of that provided by the statute and testator. The majority endeavors to establish what it regards as a “maximum” equality. To do this it decides that distribution is to be made after all federal estate taxes have been paid out of residue. Such theory has no sound basis. Testatrix’s testamentary provisions do not warrant such construction and the Act of Assembly does not so provide.
In my judgment, it is error to treat the $250,000 charge as an advancement. An advancement is a gift by a parent in his lifetime, to his child, on account of such child’s share of the estate, after the parent’s decease : Miller’s Appeal, 31 Pa. 337; Long’s Estate, 254 Pa. 370, 98 A. 1066; Harrison’s Estate, 298 Pa. 514, 148 A. 704. When distributing an estate an advancement should be treated as if repayment had been made to the estate and the whole divided, with the advancment deducted from the share of the one advanced: McConomy’s Estate, 170 Pa. 140, 32 A. 608; Laughlin Estate, 354 Pa. 43, 46 A. 2d 477; Doverspilce’s Estate, 61. Pa. Superior Ct. 318. It will be observed, in the case now before us, that $250,000 was never paid out- by• testatrix1 in her lifetime. A.t the death ■ it formed part of the estate. Such amount should, therefore,- .not be added to the -estate before deduction. Testatrix directed-that the $250,000 be treated as if paid out-of Ahe *621childrens’ equal shares of residue which could not be done until after the death. A true example of advancement is illustrated in Section Three of Article Four of this will. Testatrix had loaned money to a son-in-law which, if unpaid, she directed should be regarded as an advancement to testatrix’s daughter. Had such debt remained unpaid, the amount thereof would have been added to the estate and then deducted from the share of the child whose husband received the loan.
As, in my opinion, the tax proration made by the auditing judge (as herein modified) was accurate, and the decree of the majority erroneous, I would reverse the decree. I, therefore, dissent.
Mr. Chief Justice Horace Stern concurs in this dissent