#### Bittle *v.*Bittle.

In an action of debt by an executor, against testator’s son, on two bonds, one due one year after testator’s death, the other due many years before, the only evidence offered by the defendant was a report of an auditor, who found that the instruments sued on were debts and not advancements. It appeared further by the auditor’s report that the testator’s estate consisted almost wholly of obligations due him by his children. By his will he bequeathed *$1,000*to one son for testator’s “keep,” and further directed “the several amounts due me by my children and their husbands, for which I hold bonds and notes at the time of my decease, shall be deducted from the amounts which shall be coming to them from my estate.” He further provided for an equal division of his household goods and his residuary estate among all of his children. There was also evidence before the auditor that, at the time the will was drawn, testator requested new bonds to be executed by his children. *Held,*that the court below properly directed a verdict for the plaintiff.

February 20, 1889.

Error, No. 275, Jan. T. 1888, to C. P. Schuylkill Co., to review a judgment on a verdict for plaintiff in an action of debt by John Bittle, executor of Jacob Bittle, Sr., deceased, against Jacob Bittle, at May T. 1885, No. 301. Sterrett and Mitchell, JJ., absent.

The pleas were nil debit, payment with leave, set-off and the statute of limitations.

The following evidence was offered, at the trial of the case, before Pershing, P. J.:

Plaintiff offered letters testamentary, bonds sued on and certified copy of will. It was admitted that Jacob Bittle, Sr., died Jan. 29, 1881.

The defendant offered the auditor’s report distributing the balance on the account of Jacob Bittle, executor of Jacob Bittle, Sr., deceased, and rested.

The auditor found the following facts :

Jacob Bittle, Sr., made his last will and testament on Nov. 12, *181878, and after bequeathing *$1,000*to his son John, for his, the testator’s “ keep,” and devising a house and lot to his son Andrew’s children, subject to the occupancy of Andrew and wife, for life, he proceeded:

“ And, as touching all the rest, residue and remainder of my estate, real, personal and mixed, of what kind or nature whatsoever the same may be, in the county-of Schuylkill, or elsewhere, I give, devise and bequeath the same unto my seven dear children, viz.: William Bittle, Jacob Bittle, Jr., John Bittle, Andrew Bittle, Catherine Berger, wife of Isaac Berger, Christiana Krown, wife of Gabriel Krown, and Sarah Ehley, wife of Isaac Ehley, and to their heirs and assigns forever, to be equally divided among them, share and share alike. The several amounts due me by my children and their husbands, for which I hold bonds and notes, at the time of my decease, shall be deducted from the amounts which shall be coming to them from my estate. I desire that my household goods, which I still own, shall be equally parted and divided equally and amicably between my children before mentioned, and, in case the same cannot be equally and amicably parted between them, then I direct that my executor hereinafter named shall sell and dispose of the same, and divide the same equally among all of my children before named.” ■The auditoi', in his x-eport, found as follows:

“ At the time of Jacob Bittle’s death, his estate consisted of the notes and bonds of his sevex'al sons and sons-in-law, mentioned above, of the property in Schuylkill Haven [the house and lot devised to Andi'ew Bittle and his children], also mentioned above, a claim against the defunct Miners’ Trust Co. Bank of $1,400 [it is stated that the auditor’s report shows that this was almost a total loss, in 1876, two years before the making of the will], and cash amounting to $84.76.

*“*At the time that Bittle executed his will, he had Morgan Reed draw up, ready for execution, bonds for John, William, Andi'ew and Jácob Bittle and Gabriel Krown, to be executed respectively by them. These bonds he left with Reed and sent word to the several obligors to go and sign them. John and Andi'ew Bittle and Gabriel Krown did sign the bonds intended for them. William and Jacob declined to sign bonds intended for them, declaring that they did not owe the money claimed in the bonds. William admitted before the auditor owing $150, and Jacob Bittle has paid the executor $300.

“When Jacob Bittle, the decedent, was informed that his sons William and Jacob would not sign their bonds, he sent word for Mr. Reed to come and change his will. Reed did not go at once, and Bittle died without making any change. . . .”

“ There are some circumstances which tend to show that the moneys received by Jacob Bittle’s, children from him were advancements : As the fact that they received the money so long ago; that it is not payable in most cases until after his death; that the bonds are generally made without *interest;*that he made no effort to collect *19those bonds which were payable in his lifetime; nor to collect interest on them.

“ But, after a careful consideration of all the circumstances, and an examination of very many authorities, the auditor is of opinion that these bonds and notes represented debts and not advancements.

“ The law is well established that the intention of the testator is to govern — the intention of the testator at the time. . . .

“ What are the circumstances of this case that tend to show that Jacob Bittle, Sr., intended the loans to his sons and sons-in-law as debts due him? He took bonds for the amounts due, some of them due in his life-time, some to draw interest after maturity, some not at all. He endeavored to obtain from every one of his children evidences of their respective debts to him just prior to his death, at time of execution of his will, and long after the older bonds were given. He made certain provisions in his will which he knew could not be carried out unless the bonds held against his children wex-e collected. The very wording of the will shows that he intended these bonds should be collected. “ The several amounts due me by my children and their husbands, for which I hold bonds and notes, shall be deducted from the amounts which shall be coming to them from my estate.” The act of Jacob Bittle, Jr., in paying $300 to the executor, partly on account of one of these very notes; testator’s statement to Morgan Reed when the will was drawn; all these facts show that Jacob Bittle, Sr., regarded his children as owing him the money for which he held their obligations.”

The bonds and notes mentioned by Jacob Bittle, Sr., in his will, ai-e as follows:

One bond from Isaac Berger to Jacob Bittle, Sr., dated April 1, 1853, payable April 1, 1855, for $800, without interest.

One bond from Isaac Ehley to Jacob Bittle, Sr., dated Mai'ch 13, 1857, payable six months after the death of Jacob Bittle,Sr., without interest, for $800.

Also, one bond from Isaac Ehley to Jacob Bittle, Sr., dated May 1, 1861, payable one year after the death of said Jacob Bittle, Si'., without intei'est, for $100.

One bond from Gabriel Krown to Jacob Bittle, Sr., date blank, payable one year after the death of Jacob Bittle, Sr., for $850.

One bond from Gabidel Krown to Jacob Bittle, Sr., dated Nov. 12, 1878, payable one year after the decease of the said Jacob Bittle, Si'., without interest, for $500.

One bond from John Bittle to Jacob Bittle, Sr., dated Nov. 12, 1878, payable one year after the decease of the said Jacob Bittle, Sr., without intei'est, for $1,300.

One bond from Andi'ew Bittle to Jacob Bittle, dated Nov. 12, 1878, payable one year áfter the decease of the said Jacob Bittle, Si'., without interest, for $1,178.17.

One bond from Jacob Bittle, Jr., to Jacob Bittle, Sr., dated *20March 23, 1864, payable April 1, 1869, without interest until due, for $200.

Also, one bond from same to same, dated April 1,1861, payable one year after the decease of the said Jacob Bittle, Sr., without interest, for $1,300.

Also, one note from same to same, dated July 26,1866, payable nine months after date, for $205.

Bond William Bittle to Jacob Bittle, Sr., for $850. This bond was not signed.

The executor filed a partial account. An auditor was appointed to make distribution.

It was claimed by the executor’s counsel, before the auditor, that, under the will, the claims against each child, whether outlawed or not, must be deducted from the share of each; and hence, in the case of the plaintiff in error, the amount was made up by the auditor as follows:

Jacob Bittle, Jr.

1 bond, dated March 23, 1864, payable April x, 1869, without interest until due, for.........$ 200 00 Interest on same............“ . . 158 60

1 bond, dated April 1, 1861, payable one year after testator’s death, for.............1,300 00

Promissory note, not under seal, dated July 26, 1866, payable nine months after date, for........ 205 00

$1,863 60

The auditor fixed the share of Jacob Bittle, Jr., in the estate, at..............$ 954 541

The present suit was brought to recover the balance of the two bonds, one for $1,300, dated April 1, 1861, not due until one year after the death of Jacob Bittle, Sr., and one for $200, dated March 23, 1864, due April 1, 1869, without interest until due.

The statement prepared by the plaintiff, and on which the court directed the jury to find for the plaintiff for $1,081.78 was made up as follows:

Amount bond March 23, 1863,.........$ 200 00

Interest on same from April 1, 1869, to July 21, 1884, . 158 60

Amount bond April 1, 1861, .........1,300 00

$1,658 60

Deduct distributive share in estate of Jacob

Bittle, Sr., deceased,........$954 54

Advancement,............205 00 749 54

$ 909 06

Interest from July 21, 1884, to Sept. 19, 1887, .... 172 72

Amount of plaintiff’s claim,......$1,081 78

*21The defendant presented the following points :

“ 1. By the will of Jacob Bittle, Sr., deceased, it was provided that ‘ the several amounts due me by my children and their husbands, for which I hold bonds and notes at the time of my decease, shall be deducted from the amounts which shall be coming to them from my estate.’ This was a gift to the defendant of all that he was owing to his father, over and above the amount coming to him from said estate. *Ans.*Refused.”

“ 2. By the true construction of the will, the bonds of the defendant must be treated as advancements, and the verdict of the jury should be for the defendant. *Ans.*Refused.”

“ 3. Under all the evidence, the verdict must be for the defendant. *Ans.*Refused.”

The court charged as follows:

“ By instructions of the court, jury render verdict for the plaintiff for $1,081.79.”

Verdict and judgment for plaintiff.

*The assignments of error*specified, 1, the charge of the court, quoting it; 2-4, the answers to defendant’s points, quoting them.

*James*Ryon, for plantiff in error.

Under the will, the bonds in suit were made advancements, and, as such, were, by. the terms of the will, to be deducted from the share of plaintiff in error, and, as the will is silent as to any excess above the share, the will must be construed as fixing the amount of the plaintiff in error’s indebtedness to testator not greater than his share in the estate.

The will disposes of his whole estate, and the clause in relation to an equal division of the household goods is a strong fact, going to show that it was not his intention to have any of his sons and sons-in-law pay the excess which they might owe him over their share.

The will does not require the payment of any excess, but, on the contrary, says what each one owes shall be deducted from his share. The meaning of which is that the excess, if any, above the share, is a gift.

The intention from the will is clear that such advances as he had made from time to time to his sons and sons-in-law were equal in the proportions in which he wished to distribute his estate.

There is no significance to be attached to the language of the will, to wit, the “ amounts due me by my children and their husbands.”

Technical rules of construction must yield to the expressed intention of the testator. Reek’s Ap., 78 Pa. 432; Wright’s Ap., 89 Pa. 67.

Particular expressions, standing in the way of the general intention of a testator, must be construed in subordination to it or disregarded. Musselman’s Est., 5 Watts, 9; Schott’s Est., 78 Pa. 40; *22Middléswarth’s Adrar., *v.*Blackmore, 74 Pa. 414; Wright’s Ap., 89 Pa. 67.

If, after advancements, a will be made, the intention of the testator respecting them is matter of fact determinable from the will itself and from extrinsic matter or testimony to show whether money or goods were intended as advancements' or to be paid for. Watson *v.*Watson, 6 Watts, 254; Wright’s Ap. 89 Pa. 67.

These notes and bonds were intended as advancements at the time they were made. That they were not to be paid during testator’s life-time and were without interest, is conclusive of this.

The fact that these advances were put in the shape of notes and bonds is unimportant. Wright’s Ap., 89 Pa. 67; Ibid.93 Pa. 82; Weaver’s Ap., 63 Pa. 309.

Between a loan, gift and advancement, where the amount is substantial, the presumption is in favor of an advancement. 1 Am. and Eng. Encyclopedia of Law, 218; Sampson *v.*Sampson, 4 S. & R. 333; Dutch’s Ap., 57 Pa. 461; Weaver’s Ap., 63 Pa. 309; Wagner’s Ap., 38 Pa. 122; Murphy *v.*Nathans, 46 Pa. 508; Miller’s Ap., 107 Pa. 227; Hummel *v.*Hummel, 80 Pa. 424; King’s Est., 6 Wh. 370.

*G. H. Gerber,*for defendant in error.

Where a parent takes from a child a’bond or note for the repayment of money, or makes other provisions for the repayment of the same, with or without interest, it is presumed to be a debt and not an advancement. Levering *v.*Rittenhouse, 4 Wh. 130; High’s Ap., 21 Pa. 283; Roland *v.*Schrack, 29 Pa. 125.

In the construction of wills, the intention of the testator is to be ascertained from the whole will. Lynn *v.*Downes, 1 Yeates, 518, Pa. 518; Provenchere’s Ap., 57 Pa. 463; Reek’s Ap., 78 Pa. 432; Sheetz’s Ap., 82 Pa. 213.

And all the surrounding circumstances of a testator, his character, his family, the amount and character of his property, ought to be taken into consideration in giving a construction to his will. Postlewaite’s Ap., 68 Pa. 478; Earp’s Will, 1 Parson, 453; Marshall’s Ap., 2 Pa. *388;*Stoner’s Ap., 2 Pa. 428; Rewalt *v.*Ulrich, 23 Pa. 388.

The testator provides for an equal distribution of his estate. He so directs in express words. But this direct and positive injunction of the testator will be entirely defeated, if the construction contended for by the plaintiff in error be adopted. Not only can there be no equal distribution, but there can be no distribution at all. How is John Bittle to get his $1,000, bequeathed to him?

By our construction of the will, there is an estate to divide, so that shares of the heirs can be deducted from their indebtedness, or the indebtedness from the shares, as the case may be. By this construction, force and effect is given to every clause of the will, whereas, by the plaintiff’s construction, the- entire will, even this *23clause, is defeated. That construction should be adopted which gives effect to the whole will. Newbold *v.*Boone, 52 Pa. 167; Urich’s Ap., 86 Pa. 386; Stickle’s Ap., 29 Pa. 234.

Feb. 20, 1889.

That construction should be adopted which is as nearly conformable as possible to the general rules of inheritance. Smith’s Ap., 23 Pa. 9; France’s Est., 75 Pa. 220; Grim’s Ap., 89 Pa. 333; Minter’s Ap., 40 Pa. 111; Lipman’s Áp., 30 Pa. 180; Stehman’s Ap., 45 Pa. 398.

It was not necessary for the plaintiff below to offer any evidence whatever except the bonds in suit. These established his case until overthrown by the defense. Nor do we think that the auditor’s report was competent evidence for the purpose for which it was offered. The judgment should have been entered for the amount of the two bonds in suit, conditioned that the defendant, Jacob Bittle, Jr., should be required to pay only such part of said judgment as was over and above the amount of his distributive share in the estate of his father, Jacob Bittle, deceased. This would then have relegated the question of distribution to its prope'r tribunal, the orphans’ court. That court has exclusive jurisdiction over questions of- distribution of decedent’s estates. Kittera’s Est., 17 Pa.416; Ashfords. Ewing, 25 Pa. 213; Otterson *v.*Gallagher, 88'Pa. 355; Williamson’s Ap., 94 Pa. 231.

Per Curiam,

Judgment affirmed.