it, nor its assignee, the present plaintiff, could thereafter insist that the lease and the obligations of the lessee survived the sale. The order authorizing the discontinuance of the action against this defendant cannot be considered as an adjudication that no such election had been made, or, if made, that it could be reconsidered. No such question was involved. All that can be said of that order is that it recognized the right of the plaintiff's assignor to frame its action as it saw fit; but it certainly was not intended to affect the right of the defendant, then already vested, to hold the mortgagee to its election.

[3] We are also of the opinion that the plaintiff in the foreclosure action, and the present plaintiff, its grantee, are equitably estopped to now insist that defendant be held to its lease. After the foreclosure action had been brought, and judgment had been asked canceling, inter alia, defendant's lease, and judgment had actually been entered to that effect, defendant was justified in assuming that its lease was to be cut off, and in moving out of the premises at considerable cost. It thereby changed its position to its detriment, in reliance upon the positive acts of the plaintiff in the foreclosure action. It was not bound, as between itself and the Insurance Company, or the purchaser at the foreclosure sale, to remain in possession at the risk of being forcibly and summarily ejected.

It follows that the judgment appealed from must be reversed, and the complaint dismissed, with costs to the appellant in this court and the court below. Settle order on notice. All concur.

In re FARMERS' LOAN & TRUST CO.

In re BRINCKERHOFF'S WILL.

(Supreme Court, Appellate Division, First Department.

1. DESCENT AND DISTRIBUTION

UTES.

February 1, 1918.) 1-HOTCHPOT-COLLATIO BONORUM-STAT

The distribution of and the right to take the property of a decedent is regulated by statute (Decedent Estate Law [Consol. Laws, c. 13] §§ 96, 99) and the rule of hotchpot and collatio bonorum do not apply. 2. DESCENT AND DISTRIBUTION 99-ADVANCEMENTS-ALLOWANCE COURT.

BY

Allowances by the Supreme Court out of the estate of an insane person for the support of remote kin, brother and sister of the half blood and children of deceased sisters of the whole blood, are gifts, and not advancements, unless the court so specifies.

3. INSANE PERSONS 64-GIFTS FROM ESTATE-RIGHT OF COURT.

The court may make gifts out of the estates of insane persons to persons not entitled to any interest in the estate, where the court is satisfied that the incompetent would approve, if sane.

4. COURTS 2004-POWER OF SURROGATE-DISTRIBUTION—ADVANCEMENTS. Where the Supreme Court has made allowances out of the estate of an insane person to remote kin, and has not expressly ordered that such should be advancements, the Surrogate's Court cannot, because equitable to do so, decree that such allowances were advancements, under Decedent Estate Law, §§ 96, 99, relating to distribution.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. DESCENT AND DISTRIBUTION 109-HOTCHPOT-COMMON LAW.

At common law strictly speaking, the rule of hotchpot was only applied to cases where daughters inherited as coparceners, and probably only in cases of intestacy.

6. DESCENT AND DISTRIBUTION 109-"HOTCHPOT"-"COLLATIO BONORUM. There is little doubt that the effect of "hotchpot" and "collatio bonorum" is the same, and the use of the terms now seems to be interchangeable; the basic theory of each being equality among children of the intestate.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Hotchpot.]

7. EXECUTORS AND ADMINISTRATORS 315(5)—OrdERS OF SUPREME COURTREVISIONS BY SURROGATE'S COURT.

The Surrogate's Court in the distribution of an estate has no power to revise, alter, or change the plain terms of an order of the Supreme Court, either directly or through the indirect process of interpretation.

8. DESCENT AND DISTRIBUTION 99-HOTCHPOT-COLLATIO BOnorum. Even were the rule of hotchpot or collatio bonorum applicable to distribution of estates in this state, it cannot be said that, in making allowances out of the estate of an insane person to remote kin, it would be the invariable practice to treat them as advancements.

Scott and Laughlin, JJ., dissenting.

Appeal from Surrogate's Court, New York County.

In the matter of the judicial settlement of the account of the Farmers' Loan & Trust Company, a temporary administrator, etc., of Edwin O. Brinckerhoff, deceased, and as administrator with the will annexed. From a decree of distribution (99 Misc. Rep. 420, 163 N. Y. Supp. 961), various distributees appeal. Reversed, with directions.

Argued before CLARKE, P. J., and LAUGHLIN, SCOTT, PAGE, and SHEARN, JJ.

Ezekiel Fixman, of New York City (Ezekiel Fixman, of New York City, of counsel, and Clarence M. Lewis, of New York City, on the brief), for appellants.

Edward F. Moran, of New York City (Edward F. Moran, of New York City, of counsel, and Charles C. Nave, of New York City, on the brief), for respondents Daniels, Brown, and Brown.

Jacob H. Shaffer, of New York City (Cornelius A. Baldwin, of New York City, of counsel), for respondent Five Points Mission, Old Bowery.

Stanley W. Dexter, of New York City (George N. Whittlesey, of New York City, of counsel, and Stanley W. Dexter and Matthew C. Fleming, both of New York City, on the brief), for respondent Five Points House of Industry.

Matthew C. Fleming, of New York City, for respondent American Female Guardian Society and Home for the Friendless.

Cadwalader, Wickersham & Taft, of New York City (Francis Smyth, of New York City, of counsel), for respondent New York Association for Improving the Condition of the Poor.

SHEARN, J. The testator, Edwin O. Brinckerhoff, by his will executed October 2, 1875, gave one-half of his estate to a friend, Ed

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ward R. Livermore, who predeceased the testator, and the remaining one-half to four charitable corporations. On February 23, 1877, the testator was judicially declared an incompetent person and a committee of his person and estate was duly appointed. Such committee, with a substitution duly made in 1891, continued to act as such until the death of the testator on December 7, 1915. The testator was unmarried and was survived by the following next of kin: The appellants Evelina D. Clark, a sister of the half blood; Frederick W. Cooper, a son of a deceased sister of the whole blood; Louise B. Armstrong, a daughter of a deceased sister of the whole blood; Julia M. Harrison, a sister of the half blood; Daniel D. Brinckerhoff, a brother of the half blood; William N. Barlow, a son of a deceased daughter of a deceased sister of the whole blood; and Robert B. Brown, Julia M. Daniels, and Stuart N. Brown, children of a deceased sister of the half blood. During the lifetime of the testator, and while he was confined in the Bloom ingdale Insane Asylum, appellants, on notice to the committee, applied on petition to the Supreme Court, New York County, for and obtained orders directing the committee to pay out of the surplus income of the incompetent various amounts toward their maintenance and support.

A typical petition and order appear in the record, being the application of the appellant Cooper, dated December 5, 1913. The petition, after setting out the condition of the estate, showed that the petitioner had been an invalid for many years, incapacitated for earning any money toward his support or the support of his family; that the petitioner was without any income or means with which to procure necessary medical attendance and appliances which his condition of health required; that the incompetent, before he became incompetent, "was very kind and generous to your petitioner's mother and her children and manifested an interest in the comfort and well being of all of them, and freely assisted them financially and otherwise at various times, and from time to time and whenever and to the extent desired by your petitioner's mother; and your petitioner verily believes that said incompetent person would now freely aid your petitioner and provide him and his family with all reasonable necessities for a comfortable home and maintenance, if he could understand your petitioner's condition." The petition was sent to a referee to take testimony and the order making the allowance was based upon the referee's report. The orders contained no provision that the sums paid under them should be brought into account, in the event that the beneficiaries thereunder should come into a share of the estate. Although the monthly payments made under said orders were small, the total during the entire period of years covered by them was considerable. These amounts were: Evelina D. Clark, $7,818.33; Louise B. Armstrong, $4,950; Frederick W. Cooper, $4,524.17; Daniel D. Brinckerhoff, $1,100; Julia M. Harrison, $2,325; and Angelina Cooper, $2,450.

Objections to the probate of the will were filed by the next of kin of decedent. In order to avoid a contest, an agreement dated February 14, 1916, was entered into between the four charitable corporations, to whom was bequeathed one-half the estate, and all of the next of kin, whereby it was provided that the objections filed to the probate should

be withdrawn, that all parties should unite in procuring the probate of the will, that the collective share of the charitable corporations in the estate should be one-fourth of the residuary estate and the remaining one-fourth bequeathed to the charitable corporations should be distributed to the heirs at law and next of kin of the testator in the same manner as if he had died intestate with reference to such one-fourth share. On the judicial settlement of the account of the temporary administrator of the estate, and administrator with the will annexed, the question was raised: What is the proper method of distribution, taking into consideration the sums paid from surplus income of the estate of the testator during his lifetime to the appellants pursuant to the orders of the Supreme Court? Certain next of kin, who had not received allowances during testator's lifetime, claimed that the legal plan of distribution was by charging these allowances against appellants and deducting them from their respective shares, thereby increasing the shares of the next of kin not having received any allowances under the doctrine of hotchpot. The learned surrogate upheld this plan of distribution, in part upon the theory that, under the civil law attached to the Surrogate's Court, the surrogate has equitable power to decree a collatio bonorum. The appellants appeal from the portions of the decree which charges such allowances against them.

[1] The learned surrogate has written an erudite and extremely interesting opinion, tracing the origin and development of the rules of hotchpot and collatio bonorum, and, reasoning therefrom, finds a basis for the decision appealed from. As a matter of fact, however, the distribution of and the right to take the property of a decedent is in this state regulated by statute.

[2] It will aid a correct understanding of the controversy to determine at the outset whether the allowances paid under the orders of the Supreme Court were advancements or whether their legal status was that of gifts made by the testator during his lifetime. "An advancement is an irrevocable gift in præsenti of money or property, real or personal, to a child by a parent to enable the donee to anticipate his inheritance to the extent of the gift." 14 Cyc. 162. "An advancement is defined to be 'a gift by anticipation from a parent to a child, of the whole or a part of what it is supposed such child will inherit on the death of the parent.' Bouv. L. Dict." Messmann v. Egenberger, 46 App. Div. 46, 51, 61 N. Y. Supp. 556. See, also, Bowron v. Kent, 190 N. Y. 422, 431, 432, 83 N. E. 472. It is therefore clear that allowances for maintenance and support, made to remote kin, brothers and sisters of the half blood and children of deceased sisters of the whole blood and sisters of the half blood, are not advancements in any legal sense. It may be noted here that even in the case of true advancements—i. e., gifts from parent to child in anticipation of the child's inheritance-it has been held that:

"The right to charge advancements made by an intestate to his children against their distributive shares in his estate depends upon positive law, and the statute regulates the right and prescribes the circumstances and limitations under which the right exists." Beebe v. Estabrook, 79 N. Y. 246, 249.

"It is not disputed that the right to charge against an heir at law a sum of money advanced by the ancestor did not exist at common law, but is entirely regulated by statute." Messmann v. Egenberger, supra.

The "positive law" referred to is sections 96 and 99 of the Decedent Estate Law. Furthermore, the provision as to advancement applies only in case of entire intestacy. Messmann v. Egenberger, supra; Bowron v. Kent, supra.

That the legal status of these allowances was that of gifts made during the lifetime of the testator is equally clear. The Supreme Court, in authorizing such allowances, acts as a court of equity, having custody and control of the estate of the incompetent. Sporza v. German Savings Bank, 192 N. Y. 8, 84 N. E. 406. In so doing the court acts for the incompetent in reference to his estate as it supposes the incompetent would have acted if he had been of sound mind.

In the Matter of Heeney, 2 Barb. Ch. 326, Chancellor Walworth authorized the committee of the incompetent to permit two young ladies, not related in any way to the incompetent, to be supported as members of the incompetent's family, to have the education of one of them completed at the same expense at which the incompetent had educated her sister, and to continue allowances to three aged ladies, who were in no way related to the incompetent. The Chancellor said:

"In the case of the late Dr. Willoughby, after a full examination of the subject, I came to the conclusion that the court of chancery had the power, out of the surplus [of the] income of the estate of a lunatic, to provide for the support of one who was not his next of kin, and whom the lunatic was under no legal obligation to support, where the chancellor was satisfied, beyond all reasonable doubt, that the lunatic himself would have provided for the support of such person if he had been of sound mind, so as to be legally competent to do so."

[3] That the allowances in the Heeney Case were gifts, and not payments on account of applicants' interests in the incompetent's estate, is, of course, obvious, for the beneficiaries were not related to the incompetent, and not entitled to any interest in his estate. The Chancellor ordered the payments to be made to them as gifts, just as the incompetent had made gifts to them during the period of his competency. This answers the suggestion of the respondents that for the court to make gifts out of the incompetent's estate to persons not entitled to any interest in the estate is illegal.

There are numerous other precedents upholding the legality of payments out of a lunatic's surplus income to persons not entitled to any interest in his estate.

In Re Strickland (1871) L. R., 6 Ch. Ap. Cases, 226, committee of a lunatic was authorized to contribute £500 from the lunatic's surplus income toward the building of a school and church.

In the Matter of the Earl of Carysfort (1840) Craig & Phillips Reports, 76, Lord Cottenham granted an allowance to an old personal servant, being satisfied that the allowance was one which the incompetent himself would have approved, had he been capable of acting. The servant had no prospective interest in the estate of the incompetent. Clearly the allowance was a gift which the court believed the incompetent would have made himself.

In Ex parte Whitbread (1816) 2 Merivale's Reports, 99 Lord Eldon, in discussing the reasons for granting allowances out of the estates of lunatics, said (pages 102 and 103):