been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate, if no such advancement had been made, then such child, and his descendants, are excluded from any share in the real or personal estate of the intestate. But if such advancement be not equal, then the child, and his descendants, are entitled to receive, from the real and personal estate, sufficient to make up the deficiency, and no more. The maintenance and education of a child, or the gift of money, without a view to a portion, or settlement in life, is not deemed an advancement. An advancement of money or property to a child is prima facie an advancement, though it may be shown that it was intended as a gift and not an advancement.a

This is the provision as declared in the New-York Revised Statutes, and it agrees, in substance, with that in the statute laws of the other states. The basis of the whole, is the provision in the statute of distribution of 22 and 23 Charles II.; though there are a few shades of difference in the local regulations on the subject. The statutes in Maine, Vermont, and Massachusetts have mentioned the requisite evidence of the advancement; and it is to consist of a declaration to that effect in the gift or grant of the parent, or of a charge in writing to that effect by the intestate, or of an acknowledgment in

• The Distributees of Mitchell v. Mitchell, Alabama Rep. N. S., vol. viii. 414.

Vol. i. 754, sec. 23, 24, 25, 26. Ibid. vol. ii. 97, sec. 76, 77, 78.

e Mass. Revised Statutes, 1835, part 2, tit. 2, c. 61. Purdon's Penn Dig. 552. Elmer's N. J. Dig. 130. North Carolina Revised Statutes, 1837, vol. i. 236. Revised Statutes of Vermont, 1839, p. 293. Alabama Statute, Clay's Digest, 197. 25.

Edwards : Freeman, 2 P. Wns. 435. Wayland v. Wayland, 2 Atk. 635. Barber v. Taylor's Heirs, 9 Dana Kentucky Rep. 85.

writing by the child. The provision in those states, and in Kentucky, applies equally to grandchildren; whereas the language of the provision is, generally, in the other states, like that in the statute of distribution, confined to an advancement to the child of the parent." It is declared in New-York, that every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement. In New

Jersey, the statute uses the word issue, which is *419 a word of *more extensive import than the word child; though children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case requires it. It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending, by construction, and equity, the meaning of the word child, so as to exclude a grandchild who should come unreasonably to claim his distributive share, when he had already been sufficiently settled by advancement.d

In Pennsylvania, as the question of advancement depends upon the intention of the parent, it is held that the declarations of the parent at the time, or the admissions of the child, at the time or afterwards, are evidence of it. Daniel King's Estate, 6 Wharton, 370.

b New-York Revised Statutes, vol. i. 737, sec. 127. In Ohio, the provision applies when any child, or its issue, has been thus advanced. Statutes of Ohio, 1831.

of 1784, speaks of son or daughter having such advances. And in Vermont, by statute, the word issue, as applied to the descent of estates, includes all the lawful, lineal descendants of the ancestor. Revised Statutes of Vermont, 1839, p. 53.

• In England, provision as to advancements and portions, applies only to an actual intestacy of the parent. No collation takes place, if there be a will, although there be a surplus undisposed of by such will. Walton v. Walton, 14 Vesey, 323. It seems doubtful whether that be the operation of the Revised Statutes in New-York, in consequence of a variation in the language

In some of the states, as in Virginia, Kentucky, Alabama, and Missouri, there is a special provision, that the child who has received his advancement in real or personal estate, may elect to throw the amount of the advancement into the common stock, and take his share of the estate descended, or his distributive share of the personal estate, as the case may be; and this is said to be bringing the advancement into hotchpot, and it is a proceeding which resembles the collatio bonorum in the civil law. I do not find this privilege of election conceded by the laws of the other states, to the child who has been advanced; and there is nothing which would appear to render the privilege of any consequence.

a

V. An estate by descent renders the heir liable for the debts of his ancestor, to the value of the property de

of the statute. In speaking of advancements, in relation to the distribution of personal estates, the word deceased is substituted for intestate, whereas, in speaking of it in relation to the descent of the real estate, the word intestate is retained. New-York Revised Statutes, vol. i. 754. Vol. ii. 97. ub sup. Hawley & King v. James and others, decided by Ch Walworth, July, 1835. In Thompson v. Ex'rs of Carmichael, 4 N. Y. Legal Observer, p. 134, the Assistant V. Ch. decreed that advancement into hotchpot related to a total intestacy only, and did not apply where there was a will disposing of a part of the property of the intestate, either real or personal.

• Statutes of Virginia, 1785, and of Kentucky, in 1796, 1797, 1830. Barber v. Taylor's Heirs, 9 Dana Rep. 85. Nelson v. Bush, Ibid. 105. Aikin's Alabama Dig. 2d edit. p. 155.

b Dig. 37. 6. 1. In Louisiana, this return of property to the mass of the succession is termed collation, and it takes place unless the advancement was declared not to be subject to collation. The application and exercise of this right of collation forms the subject of minute regulation. Civil Code of Louisiana, art. 1305. 1367. Destrehan v. Destrehan, 16 Martin's Rep. 557. The whole doctrine of collation is founded principally on the equality which the law requires in the distribution of estates among heirs. In Virginia, by statute, in 1785, real estate was to be brought into hotchpot only with real estate, and personal estate only with personal; but the law was changed in that respect, by statute, in 1819. 3 Randolph's Rep. 559. In Alabama, if the child refuses to bring his advancement into hotchpot, he thereby relinquishes all interest in the estate as a distributee. 4 Alabama R. N. S. 123. This is, no doubt, the general rule on the subject.

scended, and he holds the lands subject to the payment of the ancestor's debts. By the hard and unjust *420 rule of the common law, land *descended, or devised, was not liable to simple contract debts of the ancestor or testator; nor was the heir bound even by a specialty, unless he was expressly named. But, in New-York, and in other states, the rule has been altered; and, by a provision in the New-York act of 1786, and continued in the subsequent revisions, heirs are rendered liable for the debts of the ancestor by simple contract, as well as by specialty, and whether specially named or not, to the extent of the assets descended, on condition that the personal estate of the ancestor shall be insufficient, and shall have been previously exhausted. This condition does not apply, when the debt is, by the will of the ancestor, charged expressly and exclusively upon the real estate descended to the heirs, or directed to be paid out of the real estate descended, before resorting to the personal estate. It is further provided that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall de

■ Watkins v. Holman, 16 Peters' Rep. 25. b3 Blacks. Com. 430. Co. Litt. 209, a.

The New-Jersey statute of 1797, and in that of 1847, has the same improvement as that of New-York. Elmer's Dig. 232. R. S. N. Jersey, 1847, p. 83.

d New-York Revised Statutes, vol. ii. 452. sec. 32, 33, 34, 35. The judgment against au heir or devisee is a bar to a suit against the executor or administrator for the same debt or demand, unless an execution against the heir or devisee be returned unsatisfied, or there be no sufficient lands descended or devised. And if there be a judgment against the heir or devisee for a debt or legacy expressly charged on the estate descended or devised, it is an absolate bar to any subsequent suit against the executor or administrator, for the same debt or legacy. New-York Revised Statutes, vol. ii. 114. sec. 7, 8. In Pierce v. Alsop, decided by the V. Ch. of the 3d circuit, Jan. 1846, it was adjudged that the equitable right of the creditor of the ancestor to enforce his claim against lands descended to the heir, must be in strict conformity to the provisions of the Revised Statutes. New-York Legal Observer, January,

scend to the heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate, without resorting to the executor or administrator, unless there be an express direction in the will to the contrary."

The general rule of the English and American law is, that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted, even to the payment of debts with which the real estate is charged by mortgage; for the mortgage is understood to be merely a collateral security *for the personal obligation. The order of mar- *421 shalling assets in equity towards the payment of debts, is to apply, 1. The general personal estate : 2. Estates specially devised for the payment of debts: 3. Estates descended: 4. Estates devised, though generally charged with the payment of debts. It requires express words, or the manifest intent of a tes

New-York Revised Statutes, vol. 1. 749. sec. 4. In England, by the statute of 3 and 4 William IV., c. 105, freehold estates, not charged by will, are now made assets in equity for the payment of simple contract and specialty debts; and the heir or devisee is made liable as in the case of specialty debts; but the creditors by specialty are to have priority.

Harg. & Butler's Co. Litt. 208. b. note 106. Howel r. Price, 1 P. Wms 291, and the learned note of Mr. Cox. King v. King, 3 ibid. 358. 3 Johns. Ch. Rep. 257. 9 Serg. & Rawle, 73. Garnet v. Macon, 6 Call, 608. Massachusetts Revised Statutes, 1835, part 2, tit. 3, c. 62, sec. 16. The mere charge by will of a secondary fund with the payment of debts, does not exempt the primary fund, unless it plainly appears to have been the testator's intention to exonerate it for the benefit of some legatee. Lowndes on Legacies, 329. Even if the testator's intent to exonerate the residuary fund for the benefit of a legatee be manifest; yet, by a lapse of the residuary bequest, or when it cannot take effect from any other cause, the residuary fund is restored to its primary liability for the payment of debts. Waring v. Waring, 5 Vesey, 670. Noel v. Lord Henley, 7 Price, 241. Hawley & King v. James and others, 5 Paige's New-York Ch. Rep. But if the personal fund has passed into other hands than the personal representatives, the creditor may not be bound to pursue it further in difficult cases, or wait the result of controversies, and the court of chancery will proceed to decree directly against the land. Corbet v. Johnson, 1 Brockenborough, 77. Murdock v. Hunter, ibid. 135.