sions of this will, which special fund shall be held and invested until after the decease of my said wife." In the body of the will the testator makes the further direction that, if his wife shall not by gift or will make the requested equal distribution of the property in her possession derived from him or his estate, then the trustees before mentioned shall distribute the special fund so set apart in such manner as to effectuate the desired equalization. In the codicil to his will the testator says with regard to any special fund that it "shall not be held until the decease of my said widow, but shall be divided into equal shares between my son Charles and my granddaughter Susan, so soon as possible after my said widow shall receive, if at all, any property or money by reason of having waived any of the provisions of this will."

sake of accuracy, it should be added that with the daughter Harriet the testator kept no account entitled "advancement account," but that he had, on the book referred to, an account with her, originally headed "gift account," and that at the time of the merger or transfer, above referred to, he erased the word "gift" with the intention of having the account thereafter stand as an advancement account. In any view the account belonged to the class of accounts which under the will were to be considered in the distribution.

Shortly after making the will and codicil, the testator charged his daughter Martha $48, and his daughter Nellie $150. The charges were made in their respective advancement accounts. Each charge respresented money actually advanced. In its decree of distribution the probate court undertook to give effect to all the provisions of the will as to the ap

ments so far as they had been made and appeared on the books of the testator. Charles and Susan maintain the correctness of this course, but it is challenged, in some respects, at least, by counsel for the other distributees. No reference is now had to the question of whether or not the advancement account of Charles should or should not be $20,000 more than the probate court made it in consequence of matters which will be treated separately.

Charles and Susan now claim that if the court holds, as it does, that the share of Har-plication of money legacies, ana of advanceriet vested in her lifetime and so was inherited by her mother, the trustees should be directed to deduct from the general fund and divide between Charles and Susan a sum equal to two-fifths of such share; but the codicil and the will are to be construed together. Lyman v. Morse, 69 Vt. 325, 37 Atl. 1047; Thompson v. Churchill, 60 Vt. 371, 14 Atl. 699; Barnes v. Hanks, 55 Vt. 317. And after referring to the codicil we do not think it necessary to discuss this claim. The testator had in mind nothing more than the possibili ty of an unequal distribution consequent upon a waiver of the will by his widow, and the resulting acquisition by her of a portion of his estate emancipated from the provisions of the will.

We come now to the consideration of the general plan of distribution adopted by the probate court and followed by the county court. As appears by article 13, already quoted, the trustees were to make distribution into shares which should be equal, taking into account the advancements named in the will and the money legacies other than annuities thereby given. Articles 7, 8, 9, and 15, taken together, clearly express the same idea of equal distribution among all his children, and further show that the advancements contemplated are such as might appear upon his books, at his decease, and that gifts so shown were to be treated the same as advancements. For a long time before making his will the testator had kept in a book an advancement account with some of his children, and, with those who became of age before January 1, 1891, he had kept, in the same book, a gift account. These accounts were in his own handwriting. After the making of the will and codicil, the testator merged the gift accounts in the corresponding advancement accounts; but this merger was a mere matter of bookkeeping and is immaterial. | since, as we have seen, by the provisions of his will, gifts and advances appearing by his books were to stand alike in their effect up

The plan of distribution adopted by the probate court was correct. While it is true that the doctrine of advancements finds its primary application in the distribution of intestate estates, still one may by will refer to previous advancements and gifts in such a way that they must be taken into consideration in the distribution of the estate. Younze v. Flory, 77 Ohio St. 71, 83 N. E. 305; Brown v. Brown (N. J. Ch.) 65 Atl. 739; Williams v. Freeman, 83 N. Y. 561; Appeal of Mengel, 116 Pa. 292, 9 Atl. 439; Bradlee v. Andrews, 137 Mass. 50; Baker v. Safe Deposit & Trust Co., 93 Md. 368, 48 Atl. 920, 49 Atl. 623; Manning v. Thurston, 59 Md. 224; Appeal of Wagner, 38 Pa. 122; Lawrence v. Lindsay, 68 N. Y. 108; McKibbin's Estate, In re, 207 Pa. 1, 56 Atl. 62; Moore, In re, 61 N. J. Eq. 616, 47 Atl. 731; Robert v. Corning, 89 N. Y. 227. And though a testator may contemplate that gifts or advances in his lifetime to be made after the making of his will shall be counted in the distribution of his estate, his intention in that regard, when clearly expressed, will be carried into effect. Not only may references by a testator to his books of account, so far as they contain entries made before the execution of the will, be used in determining the distribution of the estate, but a legacy may be made dependent in whole or in part upon some future event. We do not here hold that the mere act of charging a sum as an advance, done by the testator after the making of his will, is of effect. However, a testator may effectually provide that the amount of a legacy shall be reduced by gifts or ad

lifetime, and he may provide that no gift, motive of the testator is immaterial. In his shall be treated as an advancement unless it will, indeed, he refers to these advancement is charged on his books of account.

In the several advancement accounts kept by the testator, interest had been regularly computed and charged up; but after the making of the will and codicil all such charges were credited back by the testator. In doing this the testator may have been influenced by the general principle of law that advancements proper do not bear interest during the life of the testator. Black v. Whitall, 9 N. J. Eq. 572, 59 Am. Dec. 423; Jackson v. Jack-tively, with the amount so paid to equalize Jon, 28 Miss. 674, 64 Am. Dec. 114, and note; note to Miller's Appeal, 80 Am. Dec. 564, 565;

inafter provided, like the sums of fifteen thousand dollars each, herein apportioned to my daughters; and that my sons shall make no claim for services to be rendered either as executors or as trustees under this will." On the same question we quote from the findings of facts the following: "At the time the codicil was executed, Charles P. owned 350 shares of the capital stock of the Harris Manufacturing Company, a corporation in which the testator was largely interested. William A. owned 150 shares of the same stock. This stock was of some, but doubtful, value. By an arrangement between Charles P. and his father, the latter agreed to take this stock and credit it on the respective advancement accounts. This arrangement was made April 17, 1891, but whether before or after the execution of the codicil we are unable to find. The only evidence of this agreement is the two memoranda on the advancement accounts herein referred to, and the receipt of April 22, 1891, signed by C. P. Harris."

The arrangement with Charles as to his block of stock was carried out; the 350 shares became the property of the father, and the latter made an entry on the advancement account of Charles to the effect that there was to be a credit of $20,000 on such account by reason of the purchase of such shares. This entry was in pencil and was afterwards erased by the testator by the use of a rubber eraser with the intention of obliterating the entry, but it was found possible to decipher, the words of the entry. At the same time the testator made an entry in pencil on the credit side of the advancement account of his son William to the effect that there was to be a credit to him for some sum for his 150 shares to be made when the father should see the son William, and a direction that, if the father dies before making the credit regularly, the credit should nevertheless be allowed. This memorandum also the testator purposely erased before his death, but, like the other, it could be deciphered. However, William's stock remained his property, and his father never became the owner of it.

It is claimed, in behalf of those who insist that Charles is not entitled to the credit of $20,000 on his advancement account, that a certain letter written by Charles to William in May, 1891, found in the recitals of the Wheeler award, hereafter to be referred to, was before the county court as evidence. The letter is as follows: "Father has taken the stock in the H. Mfg. Co. off my hands and credited it in account at a valuation fixed by himself, with the agree ment that he will take yours and treat it in the same way—but probably at a higher rate, as you have less of it. He does this so as to have less charged against us both in case of his death. You will be perfectly satisfied with the arrangement I have no doubt." As the authenticity of the letter is not questioned, and as the court must have seen it or a conceded copy, we treat it as having been before the trial court for what it is worth against the writer, although it is not referred to in the findings.

It is urged that the findings disclose an entire contract between the testator and Charles, by which the testator agreed to take both blocks of stock and Charles agreed to deliver both, and that, since both blocks were not delivered, there was no contract obligation on the part of the father to make any credit whatever; but there is nothing in the evidence mentioned to indicate that Charles acted for his brother William, or had a right so to act, or assumed so to act, or that he undertook to sell and deliver the stock of William, and so, considering the evidence referred to and matters yet to be noticed, we construe the finding to be that as to the stock of Charles there was a meeting of minds and a contract between the testator and Charles, and that as to the stock of William the agree ment mentioned was nothing more than an offer on the part of the testator, very likely to be communicated to William. There could be no contract with William unless one was made with him or his agent. "If a man goes through the form of making a contract with A. through B. as A.'s agent, and B. is not in fact the agent of A., there The receipt referred to in the findings of is no contract because there is only one the court was a paper signed by Charles party." Holmes' Com. Law, 308. At most and found in the testator's pocket after his the undertaking of the testator with regard death. It read as follows: "Rutland, Vt., to the stock of William was a "nude comApril 22, 1891. Received of Joel B. Harris munication without effect" (1 Plowden, Com. 350 shares of the Harris Manufacturing 5) a pollicitation merely (1 Pothier, ObligaCompany, which I agree to hold in his in- tions, 4). The stock appears to have had a terest, the same having been disposed of speculative value at the time, though later to him as per special agreement made at it became of little value, and William may Rutland, Vt., April 17, 1891. All right, title | have preferred to hold his stock. The entry and claim to the same is hereby waived as to the stock of William, showing what while the same stands in my name on the company's books, in accordance with the agreement made with the above, in view of which he is to make credit for the same in the account standing against me upon his private books as proposed by him and agreed

the father was ready to do on his part, was one which he had a right to cancel, and its erasure with the intention found by the trial court was an effectual cancellation. Of this more will be said herein.

There was, however, a completed contract

the former took the stock of the latter and made up and filed was on hearing allowed. allowed the latter therefor $20,000 upon his This judgment of the probate court was ap advancement account. No erasure or other pealed from by all the parties in interest exact of the father could affect this contract. cept Charles P. and Susan. On February 7, The effect of this transaction was to reduce 1899, the county court affirmed the judgment the advancement account of Charles in the of the probate court in pursuance of a stipusum of $20,000. If a will designates pay-lation signed by all the parties in interest exments or gifts to a child as advancements, cept Susan. The stipulation was entitled as their repayment after the date of the will at any time during the testator's life goes in reduction of the amount to come out of the child's portion on account of such advancements. Leggett v. Davison, 131 Mich. 77, 90 N. W. 1060; In re Musselman's Estate, 5 Watts (Pa.) 9.

of the cause and read as follows: "In the above-entitled cause it is stipulated and agreed that the judgment of the probate court, allowing the executor's account, shall be affirmed without cost, and that such judgment shall be certified back to the probate court." Some three years of delay had been caused by the appeal, and after the judgment of the county court was certified back to the probate court a further final account was made up by the executors, in which the item of $20,000 was deducted from the assets of the estate and applied on the advancement account of Charles P. Harris in accordance with the previous judgment of the probate

was allowed by the probate court September 6, 1899, and on the back of the judgment of allowance was indorsed the final assent of all the parties in interest, including Susan, whose assent was indorsed by Charles P. Harris as her attorney. So far as the executors were concerned, this was the final settlement of the estate; the same having been since then in the hands of the trustees.

That the two blocks of stock did not stand alike was determined by the arbitration of Judge Hoyt H. Wheeler, who, acting within the scope of matters duly submitted to him, by all parties in interest, to be determined in accordance with the law, made and published a written decision to the effect that the executors had a right to treat the Charles P. Harris stock as belong-court and of the county court. This account ing to the estate of his father, and that they had not the right so to treat the William A. Harris stock. Judge Wheeler's decision was accompanied by a well-reasoned opinion in which he reviewed the transactions and evidence just referred to with reference to the stock of Charles and of William and the making of the book entries and the erasure thereof; but confining the effect of the award of Judge Wheeler to the precise question submitted and decided—that is, the ownership of the stock-and remembering that the award was before the trial court, we are confirmed in the conclusion that the findings of that court have been correctly construed. It is beyond question that, as to matters submitted, an award duly made and published, as was that of Judge Wheeler, has the binding force of a judgment. Morse v. Bishop, 55 Vt. 231; Soper v. Frank, 47 Vt. 368; Barker v. Belknap's Estate, 39 Vt. 168; Babcock v. School District, 35 Vt. 250; Woodrow v. O'Conner, 28 Vt. 776; Briggs v. Brewster, 23 Vt. 100; Rixford v. Nye, 20 Vt. 132.

But there is another matter which was before the trial court which must determine the construction of the finding in question. Some time after the award of Judge Wheeler, the final account of the executors under the will, who were Charles P. Harris and William A. Harris, was made up as of January 1, 1896, with a view of turning the estate over to the trustees and was filed in the probate court. In this account as made up and filed no credit was allowed Charles P. for the $20,000. Upon the hearing on the allowance of this account, the probate court ordered that the $20,000 be credited to the account of Charles P. Harris, and that the 350 shares of stock, before referred to, be carried on the proper schedule as an asset of

The fact that Susan did not sign the stipulation in the county court is immaterial. She did not appeal from the judgment of the probate court, and her contention here, as shown by the exceptions and by the brief in her be half in this court, is with respect to the $20,000, the same as that of Charles P. Harris, namely, that it is not a part of the general assets of the estate, but that it was properly applied to reduce the advancement account of Charles P., and that the matter of its application is res judicata.

The question of the effect of a judgment or decree on the merits, rendered by consent, is therefore here raised. In Pelton v. Mott, 11 Vt. 148, 34 Am. Dec. 678, the court held that, where a bill in chancery was dismissed upon its merits by consent of parties, the matter of the bill was thereby adjudicated. The court say: "Though in point of fact the court may not have passed upon the matters of the bill, yet by the consent and agreement of the orator the decree of dismissal was entered upon the merits, and there can be no doubt that a judgment entered up by the court upon the agreement of parties is, to say the least, as conclusive upon them as if judgment were rendered in the ordinary course of proceeding." In Vermont & Canada R. Co. v. Vermont Central R. Co., 50 Vt. 500, it was held that certain consent decrees and orders therein treated of did not have the force of decrees, and from much of the lan

ter at all. We have examined the Jenkins Case, so much relied upon in 50 Vt., and it appears to be this: Under the law of Scotland a private individual may make himself declarator for the purpose of asserting a public right of way. Some individuals did this by bringing a suit, but they compromised the suit and allowed judgment against them. Thereupon Jenkins came forward as declarator to vindicate the rights of the people, and the court held that the public rights had not been adjudicated by the judgment against Harding the former volunteers rendered as the result of their individual assent. Obviously the decision was right, and it is equally obvious that it does not in any way detract from the force and effect of a judgment inter partes rendered by consent.