Davies, Ch. J.
This is an action of ejectment, in which the plaintiff claims to recover one sixty-fourth part of a certain farm whereof Joseph McCluer died seized. She is one. of .eight children, of Samuel McCluer, a son of Joseph McCluer. The facts as found by the Supreme Court, are as follows: On the 19th day of July, 1828, Samuel McCluer, with his wife, executed and delivered to Joseph McCluer his father, a quitclaim deed of the whole of lot number thirty-nine, in township number four, in the Holland land company’s survey, in Cattaraugus county, which included the premises described in the complaint, excepting and reserving therefrom ■ several small parcels. theretofore conveyed, and also forty-five acres on the north-east part of the lot. At the time of giving such deed, it was verbally agreed between Samuel, and Joseph his father, that Samuel should have the forty-five acres on the north-east part of the lot, in full, for his share as heir of the estate of the said Joseph, but no writings were made between them, and Joseph gave Samuel no written evidence of title to said forty-five acres. Joseph McOluer was in possession of the forty-five acres prior to that agreement, and immediately thereafter, the said forty-five acres were surveyed off to said Samuel, and he went into possession of the same and continued in possession thereof until his death in July, 1829.
At the time the deed was given, Joseph went into the possession of the land conveyed or quitclaimed by Samuel and his wife, and remained in possession until his death, in 1853, and was seized in fee of the same at the time of his death. The premises described in the complaint form a part of the land conveyed to Joseph by Samuel, and form no part of the land excepted or reserved from said deed. Samuel died intestate in July, 1829, leaving him surviving eight children, of whom the plaintiff is one, all legitimate and heirs to his estate. Samuel was a legitimate son of Joseph, and had he been living when Joseph died, would have taken as an heir to Joseph. Joseph died in September, 1853, intestate, and leaving him surviving seven children, heirs to his estate, and also eight grandchildren, the children of said Samuel, including the plaintiff. The defendant;was in possession of the land described in the complaint at the time of the commencement of the action, August 3, 1859, and claimed title to the same to the exclusion of the plaintiff. He had acquired all the title of all the heirs of Joseph McOluer, except the children of Samuel. The plaintiff was born August 18, 1828, and claimed judgment for the portion already mentioned, as heir at law of Joseph McOluer, deceased.
About two years after the death of Samuel, his administrators, pursuant to an order of the surrogate of Cattaraugus county, sold the forty-five acres for the payment of the debts of the said Samuel. It appeared that the forty-five acres, at the time the deed was given in 1828, was worth more than one-eighth part of all the land owned by Joseph at that time. The jury, under the direction of the court, rendered a verdict for the plaintiff for the individual one sixty-fourth part of the premises described in the complaint, subject to the opin ion of the court at General Term on a case to be made by the plaintiff.
The court at. General Term decided that the transaction between Joseph and Samuel amounted in law to an advancement from Joseph to Samuel, or if not, that the agreement, part performance and attending circumstances, were such as in equity to require that the agreement should not be disturbed by the children and heirs at law of Samuel; or if not, that the legal title to the forty five acres was in Samuel, and the equitable title in Joseph, and that the effect of the reservation and subsequent acts of the parties was a complete consummation of the agreement, and that the plaintiff could not recover any portion of the land described in the complaint as heir at law of Joseph McCluer or otherwise, and gave judgment for the defendant. The plaintiff now appeals to this court.
The provisions of the Revised Statutes applicable to advancements to children by their parents are as follows:
“ Section 23. If any child of an intestate shall hare been advanced by him by settlement a portion of real or personal estate, or of both of them, the value thereof shall be reckoned for the purposes of this section only as part of the personal estate of such intestate, descendible to his heirs and to be distributed to his next of kin according to law; and if such advancement be equal or superior to the amount of the share, which such child would be entitled to receive of the real and personal estate of the deceased as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the intestate.
“ Sec. 24. But if such advancement be not equal to Such shares, such child and his descendants shall be entitled to receive so much only of the personal estate, and to inherit so much only of the real estate, of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.
“ Sec. 25. The value of any real or personal estate so advanced shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise such value shall be estimated according to the worth of the property when given.” (1 Rev. Stat. p. 154.)
There was no acknowledgment in writing of the value of the real estate advanced to Samuel, and it was therefore proper to estimate its worth at the time the property was given. This time was the date of the deed or release from Samuel to his father in 1828, when the forty-five acres were given to him, and a survey thereof made and possession of the same given by Joseph to Samuel. Samuel continued in possession thereof up to the time of his death, and it was subsequently sold for the payment of his debts. Upon the facts found by the court, Joseph and his heirs would undoubtedly be estopped from setting up any claim to the forty-five acres, and if any such claim had been preferred a court of equity would have restrained its enforcement.
It does not appear from the findings of facts that Joseph acquired any other real estate prior to his death than that which he owned at the date of the transaction with his son Samuel, on the 19th July, 1828. Neither does it appear that he died possessed of any personal estate. We are authorized to assume, to sustain this judgment, that he acquired no other real estate after the 19th July, 1828, and .that he did not die possessed of any personal estate. If the plaintiff’s right- of recovery was dependent upon establishing either of these facts, she should have done so upon the trial. It having been found as a fact that the forty-five acres given by Joseph to his son Samuel in July, 1828, was worth more than one-eighth part of all the land or real estate of Joseph, we agree with the Supreme Court that the transaction between Joseph and Samuel amounted in law to an advancement from the former to the latter. Samuel, or his children, upon the death of Joseph intestate, were entitled to take one-eighth part of his estate real and personal. It not appearing that he left any. personal estate or any real estate other than what he possessed on the 19th of July, 1828, it appears from the fact found that Samuel was advanced more than one-eighth part of the estate which Joseph owned.
Such advancement being equal if not superior to the amount of the share which Samuel would be entitled to receive of the estate of Joseph, it follows, from the provisions of the Revised Statutes above quoted, that Samuel and his children, including this plaintiff, must be excluded from any further share in the estate of Joseph HcCluer. This clearly should be so, until it is made to appear that he died possessed of any estate, real or personal, other than that owned by him on the 19th July, 1828. This action is to recover one-sixty-fourth part - of the real estate, which this plaintiff’s ancestor quitclaimed and released.to the ancestor of the defendant, on consideration- of receiving the .forty-five acres, which was worth more than one-eighth part of all the real estate of the defendant’s ancestor. If Joseph then had died intestate, before such advancement or gift to Samuel, such one-eighth part would have been all that Samuel would have inherited. He has received his equal share and retained the the same, and his heirs now claim the one-eighth part of the residue. A more inequitable claim could hardly be preferred, and I concur with the Supreme Court that it cannot be maintained. Judgment should be affirmed with costs.
All the judges concurring,
Judgment affirmed.