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55 Pa. St. 344; Matter of Shedd, 60 Hun 367; nor her separation on account of his drunkenness or adultery, Slack o. Slack, 123 Mass. 443. And, in Missouri, neither her ante-nuptial agreement nor her desertion of her husband will be a bar. Mowser 0. Mowser, 87 Mo. 437. So, the wife's former adultery, not continued at the time of the husband's death, is not a bar

under the Indiana statute. Zeigler o. Mize, 132 Ind. 403.

The exemption is of course barred by a valid divorce, Dobson r. Butler, 17 Mo. 87; or a divorce a menea et thoro, Estate of Fyock, 9 Lanc. L. R. 89; but not by a divorce obtained against her in a foreign court having no jurisdiction. Platt's Appeal, 80 P&. St. 501.

SECTION III.

Of the rights of the children and their representatives to distribu

tion under the statute.

sentativesof the

After the allotment of a third to the widow, the statute, as we have seen, directs a distribution of the residue by equal portions to and amongst the children of the intestate, and “such persons as legally represent such children in case any of the said children be then dead." In case there be no wife, then, by section 7, all the estate is to be distributed to and amongst the children (2).

By the words “such as legally represent such children,” their lineal representatives to the remotest degree are admitted (r).

What is meant by But the term must be understood of descendants, and their legal, reprea not next of kin (s); as for example, if a son of the children. intestate is dead, leaving a widow and child, the widow shall take nothing, and the child the whole of the father's share ; yet the widow, though not strictly one of the next of kin, is in the same sense as the child, a legal representative of the personal estate of the father (t).

To attain a clear apprehension of the subject of this section, three sorts of cases may be supposed : First, where none of the intestate's children are dead ; Secondly, where the *intestate's children are all dead, all of them having left children ; Thirdly, where some of the intestate's children are living, and some dead, and such as are dead have each of them left children (u).

On the first hypothesis, that is to say, where none of the intestate's children are dead, it is sufficiently obvious, that after 1. Where none the wife has had the third allotted to her, the maining two-thirds shall, pursuant to the statute, be dead: equally divided among all the children of the intestate ; as in this case they all claim in their own right (v).

re

of the intestate's children ure

+ See American note at end of this Section.

(9) A child legitimate by the law of its father's domicil, but illegitimate according to English law, is entitled to a share as one of the next of kin in the personal estate of an intestate dying domiciled in England under the Statute of Distributions. Re Goodman's Trusts, 17 C. D. 266 (reversing

the decision of Jessel, M. R., 14 C. D. 619).

(7") Carter v. Crawley, Sir T. Raymond, 500.

(8) Bridge v. Abbott, 3 Bro. C. C. 226, by Lord Alvanley. Evans v. Charles, 1 Anstr. 132, by Eyre, C. B.

(1) Price o. Strange, 6 Madd. 161, 162.
(u) Toller, 374.
(0) Toller, 374.

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A brother or sister of the half-blood shall be equally entitled to a

share with one of the whole blood ; inasmuch as they

are both equally near of kin to the intestate (x). A posthumous child has also the same rights; for a child en ventre

sa mère at the time of the father's death, being a perchild :

son in rerum natura, is, by the rules of the common and the civil law, to all intents and purposes a child, as much as if born in the father's lifetime (y), and consequently is entitled under the statute. If the intestate leave only one child, such case is not to be con

sidered as omitted by the statute : therefore, in case the an only child.

intestate also leave a wife, she shall only have a third part, and the other two-thirds shall go to such child (2). And where the intestate leaves an only child and no widow, although, literally speaking, there can be no distribution, yet such only child shall be entitled to the whole personal estate (a). Secondly, where the intestate's children are all dead, all of them

having left children. It is said by Toller that if a intestatu's chil. father *have three children, John, Mary, and Henry, all having left and they all die before the father, John, leaving, for

instance, two children, Mary three, and Henry four, and afterward the father die intestate, in that case all his grandchildren shall have an equal share : for as his children are all dead, their children shall take as next of kin (6): and that such also would be the case with respect to the great-grandchildren of the intestate, if both his children and grandchildren had all died before him (c).

2. Where all the

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are dead,

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() Smith 0. Tracey, 1 Mod. 209. Toller, 374.

(y) Wallis 0. Hodson, 2 Atk. 117. Burnet 0. Mann, 1 Ves. Sen. 156. Toller, 374. But such a child is only to be treated as a born child where such construction is necessary for the benefit of that child : Blasson e. Bl.:sson, 2 De G. J. & Sm. 665.

(z) Brown 9. Farndell, Carth. 52. Bac. Abr. tit. Exors. I. 5.

(a) Davers v. Dewes, 3 P. Wms. 49, note (D). Palmer v. Gerrard, Prec. Chan. 21.

+ See American note at end of this Section. (6) Walsh v. Walsh, 1 Eq. Ca. Abr.

249, pl. 7. Bowers v. Littlewood, 1 P.
Wms. 595, by Lord Parker. Davers r.
Dewes, 4 P. Wms. 50, by Lord King.
Bac. Abr. Exors. I. 3,

(c) Toller, 374. But see contra, Re Ross's Trusts, L. R. 13 Eq. Cas. 286, where Wickens, V.-C., held that the proposition in the text was not good law, for that the Statute of Distributions deals separately with the case of descendants and with the case of next of kin not descendants; and that if there are descendants, but no children living to share the estate, it is to be divided into as many shares as there are children who have left living descendants, and that the descendants of each

Where some of

intestate's

In these instances, the parties would be said to take per capita, or, in other words, equal shares in their own right (d).

Thirdly, where some of the intestate's children are living, and some dead, and such as are dead have each of them left children.t In this case, the children of the deceased chil- the

children are dead, dren take per stirpes, that is to say, not in their own having left chil. right, but by representation. Thus, for example, if a father have three *children, John, Mary, and lienry, and John die, leaving four children, and Mary die, leaving two, and Henry alone survive the father ; on the death of the father intestate, one-third shall be allotted to Henry, one-third to John's four children, and the remaining third to Mary's two children ; for these grandchildren are entitled as representing their respective parents (e).

The end and intent of the statute was to make the provisions for all the children of the intestate equal, as near as could be

Advancement : estimated (f). Accordingly, the 5th section of the Exclusion of such statute proceeds to provide, that no child of the intes. any land by settletate, except his heir-at-law, who shall have any estate in advanced by porland by the settlement of the intestate, or who shall be advanced by the intestate in his lifetime by pecuniary portion, equal to the distributive shares of the other children, shall participate with them in the surplus; but if the estate so given to such child by way of advancement be not equivalent to their shares, then that such part of the surplus as will make it so shall be allotted to him or her (9).

This just and equitable provision has been also said to be derived

have

ment or have been

tion :

such child are to take as representing paragraph of the 5th section, where it the child, and of course only the child's follows the words “amongst the chilshare, that is to say, that wherever dren of such persons dying intestate,” there are descendants the division will be as meaning “or." per stirpes and not per capita. North, (el) 2 Black. Comm. 517. J., took the same view in Re Natt, 37 + See American note at end of this C. D. 517. The question depends on Section. the construction of the statute. The (e) Bac. Abr. tit. Exors. I. 3. Toller, view of these learned judges necessitates 374. Under the decisions of Wickens, the application of the 5th section of the V.-C., and North, J., above cited, statute to a case where the intestate there would be no difference between leaves no living children, but only legal the second and third cases, descendants representatives of such children, and of deceased children taking per stirper the reading of the word child”

in either case. in the 7th section as meaning “child (f) Edwards o. Freeman, 2 P. Wms. living either in person or in its descend- 439, 440, by Sir Joseph Jekyll. ants.” This view also seems to involve (9) 2 Black. Comm. 516. reading the word "and" in the 2nd

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from the collatio bonorum of the imperial law ; which it certainly resembles in some points, though it differs widely in others : But it may not be amiss to observe, that, with regard to goods and chattels, this was part of the ancient custom of London, of the province of York, and of the sister kingdom of Scotland ; and with regard to the lands descending in co-parcenary, that it has always been, and still is, the common law of England, under the name of hotchpot (7).

*This provision applies only to the distribution of the estates of intestate fathers : And therefore if a mother being a widow, advances a child, and dies intestate, leaving many children, the child advanced shall not bring what he received from his mother into hotchpot : This was decided by Lord King, C., on the principle, that the statute was grounded on the custom of London, which never affected a widow's personal estate, and that the act seems to include those alone within the clause of hotchpot who are capable of having a wife as well as children, which must be husbands only (ë).

The statute takes nothing away that has been given to any of the children, however unequal that may have been : How much soever it may exceed the remainder of the personal estate left by the intestate at his death, the child may, if he pleases, keep it all; if he be not contented, but would have more, then he must bring into hot clipot what he has before received : This manifestly seems to be the inten. tion of the act, grounded upon the most just rule of equity, equality (k).

The provision in the statute applies only to the case of actual intestacy; and where there is an executor, and consequently a complete will, though the executor may be declared a trustee for the next of kin, they take as if the residue had been actually given to them : Therefore a child advanced by his father in his life, or provided for in the will, cannot be called on to bring his share into hotchpot (1).

If a child, who has received any advancement from his father, shall die in his father's lifetime, leaving children, such *children shall not be admitted to their father's distributive share, unless they bring in (1) 2 Black. Comm. 517.

Q. B. D. 300, as to the effect of a hotchseemeth,” says Littleton, sect. 267, pot clause in a will. “that this word 'Hotchpot,' is in Eng- (i) Holt v. Frederick, 2 P. Wms. 357. lish a pudding; for in a pudding is not Bennet v. Bennet, 10 C. D. 474. commonly put one thing alone, but one (k) By Lord Raymond, in Edwards thing with other things together : " 2 v. Freeman, 2 P. Wms. 443. Black. Comm. 190. See Fox v. Fox, (1) By Sir W. Grant, in Walton o. L. R. 11 Eq. 142. Hewitt v. Jardine, Walton, 14 Ves. 324. Edwards o. Free. L. R. 14 Eq. 58. Limpus v. Arnold, 15 man, 2 P. Wms. 440, 446. See Stewart

v. Stewart, 15 C. D. 539, 543.

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