The Chancellor:—
The first question for our consideration is, the demurrer to the jurisdiction of the Court. The objection is, that the partition cannot be made as under the statute, because the statute is inapplicable; that neither does a bill lie for partition under the general jurisdiction of the Court, because the testator has, himself, provided a mode of partition which excludes that jurisdiction, and that the only proceeding is by petition to the Chancellor for the appointment of five freeholders ; that upon such petition the Chancellor will appoint the five freeholders, in whom will then vest the whole authority to deal with the estate for the purpose of partition, and to determine all questions involved without any decree, order, or instruction of the Court. Such is the theory of the defendants.
It is quite certain that this case is not within the Statute for partition between joint tenants and tenants in common. For the shares of the tenants in common are not ascertained, nor are ascertainable, through any powers conferred on the Court by the Statute. But the shares may be ascertained and the partition made by the Court in the exercise of its general jurisdiction, for under its general jurisdiction for partition, the Court may exercise any power necessary to ascertain the rights of parties, and to effect a partition according to their rights. I am [250]*250not able to foresee, that, in order to give full effect to this testator’s will, any orders or proceedings will be required which are not within the jurisdiction of this Court upon a bill. Its powers, under this head of jurisdiction, are by no means stinted. 2 Ste. Eq. Jur. Sec. 656. So would stand the case before us were it not for the direction in the will for the appointment of freeholders to make the division, which is supposed to exclude the general jurisdiction of the Court. But by this provision I do not understand the testator as meaning to withdraw his estate from such jurisdiction-of the Court,for partition, but rather to invoke it. It is not a mere nomination of freeholders by the incumbent for the time being of the office of Chancellor, that the provision directs, but it is evidently an appointment by the Court, acting judicially and by such proceeding as might be appropriate to the subject-matter, that the testator contemplated. Hence, his expression “to be appointed by the Chancellor according to law." The Court will then entertain a bill for partition among the devisees under this will, and will deal with the case, in all respects, according to the course of its general jurisdiction for partition.
The second cause of demurrer is to the frame of the bill. This bill is very inartificial, the consequence, no doubt, of its being originally drafted as a petition for partition, under the Statute, and then only partially modified with á view to its answering as a bill. Some of the parts of a bill it contains, such as the address, the names and description of the complainants, and a statement of the facts, answering to a stating part of a bill. It omits the charge of confederacy and the jurisdiction clause, but these are wholly unnecessary, and were so before the adoption of the new rules. 1 Sto. Eq. PI. secs. 29, 34. It also does not contain the charging part of a bill which alleges pretences with counter allegations by way of answer to the supposed defense, but this is not a necessary part of a bill, and should be used only [251]*251when it is requisite in order to enable the complainant to introduce, and put in issue, an answer to some anticipated matter of defense. There are also no interrogatories, but the use of these has always been, discretionary. It is said that in the original forms of bills, special interrogatories were not used. 1. Sto. Eq. PI. sec. 38. The bill is, however, defective in several respects. (1.) It is not correct in its statement as to what real estate is to be divided, and what are the shares of the devisees. The partition must include the whole estate of which the testator died seized, as weB the reversion in the parts assigned to the widow for dower, as the residue. We cannot deal with the residue alone now, and await the widow’s death before dividing the parts assigned to her; for the shares of the parties entitled are tobe ascertained now, by the result of a division of the whole, whether that would give to each devisee less or more than $4,000 in value. Again, the bill is in error in stating that the partition is to be made originally into seven parts instead of eight, in consequence of the death of Hannah M. Marshall. By her death before the testator, the original eighth part devised to her, lapsed ; there is no provision under the will under which it can pass; it cannot pass to the other seven original devisees under the devises made to them ; for these devises are expressly of one-eighth part, and can pass no more. The provision for survivorship upon the death of either of the eight devisees without issue, must be taken to apply to a death occurring after and not before the decease of the testator; but if we suppose Hannah’s share to pass under this clause, then it goes to all the eight surviving brothers and sisters, John P. Marshall included, which would not give the surviving seven original devisees a seventh instead of an eighth, but an eighth with an eighth of one-eighth. But, in point of fact, Hannah’s share is intestate, and in the partition, whatever she would take if living must be allotted to all the surviving children of the testator to hold together as his heirs at law, the surviving [252]*252children to take by devise precisely as if she were living, i. e. one eighth, or, if this shall amount to more than $4,000, one-ninth and an eighth of the excess. (2.) A second defect in the bill in the absence of any formal prayer for relief,\ which, in this case, would be a prayer for partition among the parties entitled, according to their shares and interests as previously set forth. (3.) There are prayers for subpoena and answer, but they are too informal. It will be necessary to remodel the whole of the latter part of the bill, including the statement of the interests of the parties and the prayer for answer, relief and subpoena.
Another cause of demurrer to be next considered is to the right of the complainants being themselves trustees, under some of the deeds, to claim to have the deeds treated as advancements. The. assertion of such a claim, being contrary to the interests of their cestui que trusts, it is complained of as a breach of trust. But the complainants are themselves devisees in their own right. Their own right as individuals, whatever they' may be, they are not obliged to sacrifice because of their relation as trustees to some of the devisees. To submit the question whether the deeds operate as an advancement to the decree of the Court, is the legitimate mode of ascertaining what are the rights of the parties, and is not a breach of their duty as trustees, such breach would arise upon a failure to maintain the rights of their cestui que trusts, as they shall be ascertained and adjudged by the Court.
The remaining cause of demurrer, is that upon which rests the main controversy. It contests the claim set up by the bill that, in the partition, the lands conveyed by the testator to some of the devisees, be estimated in the partition directed by the will, and be held by the grantees as part of their respective shares. The complainants maintain this claim upon several distinct grounds. Among these,the ground taken by Judge Layton naturally presents itself first; that is, that the will contemplates the partition [253]*253of the whole estate as it was then held, the intent of the testator being, that each devisee take one-eighth of the lands then held, and not one-eighth of a part only of them. The answer is obvious. Under any circumstances, a will can operate only on such lands as the testator may hold at his decease. In this case the testator so expressly directed. Afterwards, by these conveyances, the legal effect of which he must be presumed to have understood, he withdrew part of his lands from under the devise, leaving it to apply only to the residue. Nothing beyond this residue, then, can be included in the partition by force of the will. If the lands taken out of the devise can be estimated in allotting to the grantees their shares of the remaining lands, it must be through some legal effect arising from the conveyances themselves. That they have such effect has been earnestly argued upon these grounds.
First, that taken by the bill which treats the conveyances as advancements. But an advancement, properly so called, though a, thing known under certain ancient customs in England, is now a creature of the statute, and by the statute, is confined to intestate estates, and never applied to lands devised. Under the statute for the distribution of intestate estates in England (22and23 Car, II.) and in many of the States, a child of an intestate having, in the intestate’s lifetime, received a portion, either in real or personal estate, shall be charged with it against the share of the estate, which, otherwise, he would have taken. He may keep the whole of the portion advanced, whether it be more or less than his distriburive share would have ¡been, but he cannot claim anything in addition without bringing his portion into hotch-pot as was the homelyEnglish phrase,or collecting it,in the language of Civil law. 2 Williams on Ex’rs. (1285 &c.) Under our statute {Rev. Code, 279) only gifts of real estate by a parent are treated as advancements, and these only when the parent afterwards dies intestate. It is only in the partition [254]*254of the intestate real estate that the question of advancement arises. The reason why the doctrine of advancement is copied in our law, is obvious. The parents having left it to the law to distribute his estate, the law, making for him what Lord Raymond, in 2 P. Wms. 443, aptly calls a “Parliamentary will,” divides it upon the just principle that, among those standing in the same relation to the intestate, equality is equity. But where the parent has, by will, disposed of his estate, the law does not interfere, leaving him to be master of his own property and the judge whether, under all the circumstances, an unequal distribution may not be just and necessary. The strict limitation of this doctrine of advancements to estates distributable by the law, may be traced in that feature of the ancient custom of hotch pot, in force between daughters taking by descent, which restricted the custom to lands descending in fee simple, excluding from its operation estates tail, for the reason as stated by Blackstone, (2nd Vol., 191,) that “lands descending in fee simple are distributed by the “ policy of the law,for the maintenance of all the daughters ; “and if one has a sufficient provision out of the same “inheritance equal to the rest, it is not reasonable that “she should have more; but lands descending in tail “are not distributed by the operation of the law, but “by the designation of the giver per formam doni; it “matters not, therefore, how unequal this distinction may “be. ” The same policy extends into the Statute of Distributions of Car. II, in which were embodied this common law as to coparceners, and the ancient local customs of London and York, in the distribution of goods and chattels, (2 Williams on Exrs. (1286), and both in England and in the United States, the law of advancements has been applied only in cases of intestacy. Never, where there is a will, not even as held in many cases, though there may be a surplus undisposed of by the will, is a gift in the testator’s lifetime required to be brought into the distribution of such surplus. The cases on this subject are, Vachell vs. [255]*255Jeffereys, Prec. in Chanc, 170; Sir William Grant, in Walton vs. Walton, 14 Ves. 323; 2 Williams on Ex’rs. (1287); Hawley vs. James, 5 Paige 450; Arthur vs. Arthur, 10 Barb. S. C. 24; Thompson vs. Carmichael's Ex’rs., 3 Sandf. Ch. 120; Christman vs. Seigfried, 5 Watts and S. (Pa.) 400; Newman vs. Wilbourne, 1 Hill's (S. C). Ch. 10; Newill’s case, Brovune 311; Brown vs. Brown, 2 Iredell’s Eq. 309; Richmond vs. Vanhook, 3 Iredell's Eq. 581; Needles vs. Needles, 7 Ohio St. 435.
The Second ground, for the complainants, was taken by Mr. Robinson, (whose clients, though defendants, were in interest with the complainants,) viz; that the conveyances, though not within the Statute as advancements, might be held to operate as a satisfaction of the undivided interests devised to the grantees, as a part execution of the direction for partition, by analogy to the doctrine of ademption, applied to legacies. The principle upon which this doctrine of ademption goes is, that the legacy bequeathed in the will, and the portion settled, afterwards, upon the legatee, are presumed to be for the same purpose, are, in fact, the same thing, the settlement being treated as the satisfaction of the legacy in advance. Now, in some cases a conveyance to a devisee after the making of a will would operate in like manner as the ademption of a legacy, that is, where the conveyance to the devisee is of the same land which was devised to him. By such- a conveyance the testator executes his devise, precisely as the settlement of a portion on a legatee, is an ademption of the legacy. In the present case had the testator made, by the will, a partition of his lands, devising a specific parcel to each child, and had afterwards conveyed to some of the children the tracts devised to them in severalty, then the conveyances would have been a part execution of the will, and like the ademption of a legacy,by a subsequent settlement of a portion on the legatee. But here the conveyances cannot be legally held to be of [256]*256the same lands which were devised to the grantees. The will speaks from the death of the testator, and devises to the grantees a share of such lands as the testator should die seized of, i. e., the remaining lands other than those conveyed. In no legal sense can a conveyance of specific tracts in severalty be deemed a satisfaction or execution of a devise of other lands,or of an undivided share of the remaining lands. Nor, to carry the question a little beyond the line of the argument, can the conveyances operate as a revocation of the devise to the grantees in whole or in part, because, under the Statute of Wills, (Sec. 10,) a will can be revoked only in the form therein prescribed, except in the case of implied revocation. Implied revocations arise only out of cértain alterations of the estate devised, which are incompatible with the operation of the devise, or out of such a complete change in the relations of the testator as imposes new obligations, and necessarily implies a change of testamentary purpose, such as marriage and birth of issue after the will. Cruise’s Dig. Title Devise, chap. VI, secs. 44, 45. The conveyance to a devisee of lands, other than those devised, or of an interest in lands different from that devised, has never been held an implied revocation of the devise. On the 'contrary, the devisee under such circumstances has been held entitled both under the devise and under the conveyance. Clarke vs. Berkeley, 2 Vern. 720 ; Rider vs. Wager, 2 P. Wms. 328 ; Davys vs. Boucher. 3 Yo. & Coll. Exch. 397; Arthur vs. Arthur, 10 Barb. 20.
I can see no legal ground to hold that these conveyances operated either as a satisfaction or execution of the devise to the grantees, or as an implied revocation of the devise.
A 'Third ground for the complainants was that of Mr. Cullen. Going beyond those before taken, he argued, in substance, that these conveyances, though not strictly [257]*257by their own force operating as advancements, or as a satisfaction, or part execution, of the will, yet that, in this case, being made by the testator, with the express intent that they should be so taken, (so admitted by the demurrer,) and being made to volunteers, the lands should be held by the grantees for the purpose of their conveyance, to effect which purpose equity may imply a trust that these lands be estimated in the partition, and treated as satisfaction pro tanto of their shares of the whole estate as it stood at the date of the will. This argument is even more persuasive than those before considered, because it proposes not only to effect equality among the children, but to do so by carrying out the intention of the testator in these very conveyances. To such an object this court would be ready to lend its aid, but that a rule of law forbids. It is this : Where the question concerns the effect of any instrument, a will, conveyance, or agreement of any kind, the effect to be given to it must be such, and only such, as arises from its terms, or from its legal operation on its face. Any latent ambiguity in its terms may be explained by evidence shewing to what subject-matter the terms used were intended to apply, or if, through mistake or fraud, a provision intended to be inserted has been omitted, equity will reform the instrument, and execute it, as reformed. But where the instrument embodies all the terms and provisions which were intended to be embraced in it, and those terms and provisions have, on their face, a clear meaning, then no extrinsic evidence of intention, nor even an admitted intention, can, in any way, vary or enlarge the legal operation of the instrument. This is a rule well settled, of great importance, and binding as well in equity as at law. Now, as to its application. Upon these conveyances there appears no ambiguity to be explained ; there is no alleged omission of any condition intended to have been inserted, which, on the ground of mistake or fraud, equity can supply. They are all the grantor intended them to be, on their face, and, on their [258]*258face, they are unqualified gifts of the lands conveyed. But the argument proposes, in effect, to engraft upon them a condition or trust, so as to oblige the grantees to bring them into the partition. This cannot be done without overturning fundamental principles.
The case was put, in argument, of a father conveying, in advance, to a son, his share of the estate, under an agreement by the son to take it in satisfaction. Such an agreement equity would enforce by obliging the son, at the father’s decease to release any share of the remaining estate. What matters it, then, it was asked, whether such ■agreement be express or implied ? Certainly it matters nothing. An agreement is of the same force, whether express or implied : — but the real question is, from what,in such a case as this, an agreement on the part of the grantees to hold the lands as an advancement's to be implied? It might be implied from some acts on their part, which, in good faith and fair dealing, require that these lands be brought into the partition, as if these grantees had, by representing that the lands would be taken as advancements, induced the father to convey them, or to omit from the deeds any provision that the lands should be so taken, or had induced him to omit revoking, by a codical, these shares in the partition, in such case equity would imply an agreement or trust, but nothing can be implied against them, from their bare acceptance of a gift unqualified on its face, without, so far as the case shows, any knowledge of the grantor’s expectations, or even any knowledge that he had made any will. We cannot, in such case, presume a renunciation by them of their rights under his will; non constat that, if apprized of his will and purpose in the conveyances, they might have elected to hold their full shares under the will.
The case really presented is this. The testator and grantor either mistook the legal operation of these conveyances, or, through ignorance or inadvertence, omitted to make a codicil to his will. But for this there is no remedy. [259]*259Where a party makes just such an instrument as he intends to make, without fraud, surprise, or mistake in fact, an error as to the legal effect of the instrument cannot be corrected. Says Chancellor Kent, in Lyon vs. Richmond, 2 Johns. Ch. 60. “Every man is to be charged, at his peril, with a knowledge of the law. There is no other principle which is safe or practicable in the common intercourse of mankind.1'’ The principle has been fully discussed and applied in many cases. The leading cases are Worrall vs. Jacob, 3 Meriv. 195 ; Ld. Irnham vs. Child, 1 Bro. C. C. 92; Hunt vs. Rousmaniere's, Adm'rs. 1 Peters S. C.R. 1; 1 Sto. Eq. Jur.sec. hi &c. See, also,especially, a late case in New York, Arthur vs. Arthur, 10 Bard. 120 very similar to the present one in its circumstances and in the questions raised.
In Worrall vs. Jacob, 3 Mer. 195, a party, having a power of appointment, executed it absolutely, without introducing a power of revocation, upon a mistake of law, that, being a voluntary deed, and remaining in her possession, it was revocable at pleasure. The Court denied any relief — “If”—says Judge Story, 1 Sto. Eq.Jur. Sec. 112, “the “power of revocation had befen intended to be put into the “appointment, and omitted by a mistake in the draft, it “would have been a very different matter,” — a distinction which has already been put in this case.
After a full consideration of the whole subject, I am unable, though altogether disposed to do so, to bring the lands conveyed to the defendants, into the partition. This result disappoints the testator’s expectation and works great inequality among his children, but this isa mischief far less than it would be to relax rules of law, settled upon great consideration for the protection of rights of property; Instances like this, of hardship, and even of injustice, are unavoidable. It is not possible, by any system of jurisprudence, to administer exact justice in every case. The best system is that which affords such rules as will ' secure [260]*260justice in the ordinary course of human transactions, and to such rules once settled, it is the duty of the Court,and the part of wisdom, to adhere.