페이지 이미지
PDF
ePub

tlement :

his advancemert ; since, as his representatives, they can have no better claim than he would have had, if living (m).

A child advanced in part shall bring in his advancement only among the other children ; for no benefit shall accrue from it to the widow (n).

It will be convenient to consider this subject further, 1. With respect to children who have any land by settlement of

1. Children who the intestate.f 2. With respect to children who have have land by setbeen advanced by pecuniary portions.

The statute extends not only to land, freehold and copyhold, settled on a younger child by the father, but also to charges upon land for such child (o): So if a father settle a rent out of his lands on a younger child, this is within the statute (p): and so is a reversion settled on any child but the heir (2).

Land claimed by marriage settlement has been held an advancement within the statute : but land devised by the father to a younger child is not to be so considered : for a provision to be brought into hotchpot must be such as is made by an act in the intestate's lifetime, and not by will (r).

In respect to Borough-English lands, which descend to the youngest son, it was once held that he should allow for them, on the ground that the statute intended merely to provide for the heir of the family, that is, the heir by the common law, and not one who is heir only by custom in some particular places (s). But that decision has been overruled, and it is now *settled, that such youngest son shall have an equal share of the distribution with the other children, without regard to this species of estate ; for although the exception in the statute extend only to the eldest son, yet no law exists to oblige the heir in Borough-English to bring in his lands : The statute contains no such requisition : It speaks merely of such estate as a child hath by settlement, or by advancement of the intestate in his lifetime (t).

(m) Proud o. Turner, 2 P. Wms. 560. (p) Ibid.

(n) Kircudbright v. Kircudbright, 8 (9) Ibid. 442. Ves. 51, 64. So too if a will contains (r) By Sir J. Jekyll, ibid. 440. Twisa hotchpot clause, prima facie the den 0. Twisden, 9 Ves. 425, 462, by widow cannot claim any benefit there- Lord Eldon. under against the children: Stewart (8) By Sir J. Jekyll, M. R., in Pratt 0. Stewart, 15 C. D. 539. See also v. Pratt, 2 Stra. 935. Meinertzagen v.Walters, L. R.7 Ch. 670. (t) By Lord Talbot in Lutwyche v.

+ See American note at end of this Lutwyche, Cas. Temp. Talb. 279. As Section.

to whether a coparcener is bound to (0) By Sir Joseph Jekyll, Edwards v. bring land into hotchpot, see Dillon o. Freeman, 2 P. Wms. 441.

Coppin, 4 M. & Cr. 647. 56

[*1372]

(Pt. III. Bk. Iv

have been

ad. vanced by pecuni.

Money laid out by the intestate on repairs of houses, which had been given, but not conveyed, by him to his eldest son, and which had therefore descended on him as heir-at-law, has been held not to be an advancement to be brought into hotchpot under the statute : though it would bave been otherwise if the father in his lifetime had irrevocably parted with the estate by a conveyance to the son, and afterward given him a sum of money to ameliorate it (u).

2. With regard to children who have been advanced by pecuniary 2. Children who portion. By the provisions of the statute, although

the heir-at-law shall not abate in respect of the land ary portions :

which came to him by descent, or otherwise from the intestate, yet if he hath had any advancement from his father out of his personal estate, he shall abate for it in the same manner as the other children (x) : And were it merely the use of furniture for his life, it shall be regarded as an advancement pro tanto (y). Coheiresses shall also, it seems, bring in such advancement, not being land (2), as they may have respectively received from their father, before they shall be entitled to their distributive share; agreeably to the principle of the act, and to the object of a just and impartial father to promote an equality among his children (a).

*It remains to consider what is, and what is not, to be regarded as what is consid. an advancement out of the personal estate of the father, ered an advance. so as to exclude a child from a distributive share of the personal estate :

whole or part of the residue. A provision made for a child by a settlement, whether voluntary, or for a good consideration, as that of marriage, is such an advancement ().

It is not requisite, to constitute an advancement, that the provision should take place in the father's lifetime (c). If by deed he settle an annuity, to commence after his death, on one of his children, it is an advancement (d). So a portion secured to the child, although in

a

ment out of the

(u) Smith v. Smith, 5 Ves. 721.

+ See American note at end of this Section.

(x) Pratt 0. Pratt, Fitzgib. 285. Com. Dig. Admon. (II.). 4 Burn, E. L. 397, 8th edit. Smith v. Smith, 5 Ves. 721.

(y) Pratt 0. Pratt, Fitzgib. 285. Com. Dig. Admon. (H.). Kircudbright v. Kircudbright, 8 Ves. 61.

(z) See Dillon v. Coppin, 4 M. & Cr. 647.

(a) 4 Burn, E. L. 397, 8th edit. Toller, 378.

(6) Edwards v. Freeman, 2 P. Wms. 440, 441. Phiney v. Phiney, 2 Vern. 638.

(c) Edwards 0. Freeman, 2 P. Wms. 445.

(d) Ibid. 442. Swinb. Pt. 3, s. 18, pl. 25.

futuro, is an advancement (e). Thus a portion for a daughter, to be raised out of land, on her attaining the age of eighteen, or the day of her marriage, was held to be an advancement to her when she married, although she was under that age, and unmarried, at the time of the intestate's death (f).

A portion, which was at first contingent, shall clearly be considered an advancement, when the contingency has happened (9). And it seems that a portion, even while contingent, being capable of valuation, may be brought into hotchpot (): or the court may order, that in case the contingency shall happen, the portion shall be so distributed as to make the rest of the children equal with the child on whom it was settled (i) : But the contingency must be so limited as necessarily to arise within a reasonable time ; as in the case stated above, where the portion was secured to the daughter, on her attaining the age of eighteen, or on her marriage (1).

Where a father makes a provision for a son on his marriage, all the limitations in such settlement to the wife and children of such son must be considered as part of that *advancement ; and it is not the son's estate for life only that ought to be valued, and brought into hotchpot (1)

With respect to the sort of benefit which shall constitute such advancement, it has been held, that if a father buy for a son an advowson, or any other ecclesiastical benefice, or if he buy him any office, civil or military, these are to be considered as advancements, either partial or complete, according to the comparative value of the estate to be distributed (m). And although the office be only at will, as a gentleman pensioner's place (n), or a commission in the army (o), it is to be regarded in the same light.

An annuity is an advancement to be brought into hotchpot (P), or rather may

be

so, for an annuity is not an advancement if given by way of maintenance of an infant (2), viz., the value at the date of the

(e) Ibid. 445.

(f) Edwards ». Freeman, 2 P. Wms. 435.

(g) lbid. 442.
(1) lbid. 442, 449. Toller, 377.
(i) Ibid. 446. Toller, 378.

(k) Edwards r. Freeman, 2 P. Wms. 440, 445, 449. Toller, 378.

() Weyland v. Weyland, 2 Atk. 635. See Dillon v. Coppin, 4 M. & Cr. 647, 669.

(m) Hender v. Rose, 3 P. Wms. 317, note to Pusey v. Desbouverie.

(n) Norton v. Norton, 3 P. Wms. 317, note.

(m) Kircudbright v. Kircudbright, 8 Ves. 63. Boyd v. Boyd, L. R. 4 Eq. 305. Taylor v. Taylor, L. R. 20 Eq. 155.

(p) Swinb. Pt. 3, s. 18, pl. 29.
(9) Hattield t. Minet, 8 C. D. 136.

[*1374]

grant; or, if it has ceased, the payments received, at the option of the child (r).

In a case where a father lent the sum of 10,0001. to his son, to assist him in forming a partnership in the business of a sugar refiner, and took his promissory note for the repayment of that sum on demand : It appeared, that it was in consequence of the urgent desire of the intestate that the son engaged in the business; and that finding it was a losing concern he became desirous of retiring from it, but that the father urged him to continue it ; that at the earnest entreaty of the intestate, he, with much reluctance, continued the business, and sustained heavy losses in it : The father on his deathbed caused the promissory note to be burned, and died intestate : Sir John Leach, M. R., held, that, although the circumstances under which the note had been destroyed amounted to an equitable release of the debt, yet that the sum which remained due upon it must be considered an *advancement to the son (s). Any sum of considerable amount paid out of the common fund of a family to or for the benefit of a child is an advancement within the meaning of the Statute of Distributions. Thus a premium upon the occasion of a son being articled to an attorney (t): a sum paid for the purchase of a commission in the army for a son (u): sums paid by a father to a son to enable him to pay his debts (x): the payment of the admission fee to one of the Inns of Court in the case of a son intended for the bar (y): the price of the

() Kircudbright v. Kircudbright, 8 Ves. 51.

(8) Gilbert v. Wetherell, 2 Sim. & Stu. 254. In the case of Smith v, Conder, 9 C. D. 170, where a testator, who died in 1874, by his will in 1864 gave the residue of his property to trustees to divide amongst his six children equally, and directed that the sums of money advanced to them in his lifetime should be brought into hotchpot, Hall, V.-C., held that a letter written by the testator to one of his sons in 1873, whereby he stated that if he would give the testator a promissory note for a sum mentioned less than the amount advanced to the son he would write off the balance, was inad. missible in evidence, inasmuch as it was not sought thereby to rebut a presumption but to displace an express

declaration contained in a testamentary instrument by declarations not testamentary. But it is submitted that the letter, together with the promissory note, was evidence of satisfaction of the advance. The note was not, as in Gilbert v. Wetherell, given with the advance.

(1) Boyd v. Boyd, L. R. 4 Eq. 305.

(u) Ibid. Taylor v. Taylor, L. R. 20 Eq. 155.

(x) Boyd v. Boyd, L. R. 4 Eq. 305. Auster v. Powell, 31 Beav. 583. 1 De G. J. & S. 99. Re Blockley, 29 C. D. 250. This however was held by Jessel, M. R., not to be an advancement: Taylor v. Taylor, ubi supra.

(y) Taylor v. Taylor, ubi supra.

:

what

shall

not

vancement.

outfit of a son entering the army (2) : the price of plant and machinery and other payments to start a child in business (a): have been held to be advancements.

On the other hand, small inconsiderable sums of money given to a child by the father, or mere trivial presents he may make to a child, as of a gold watch, or wedding clothes, constitute an adshall not be deemed an advancement (6): nor shall money expended *by the father for the maintenance of a child, nor given to bind him an apprentice, nor laid out in his education at school, at the university, or on his travels (c).

It is presumed, indeed, that a distinction must be made when a considerable sum of money is advanced by the father with the child as a premium for instruction, and not merely as a compensation for maintenance, and that the former sum is in strictness liable to be brought into hotchpot (?). In allusion to this distinction, it is conceived that Lord IIarılwicke expressed himself in Morris v. Burroughs (e) : "I should think,” said his lordship," that if a father should give money to put a son out apprentice, or advance him in life by setting him up in trade, &c., that would have the same effect," i. e. will be a satisfaction of the custom, or must be brought into hotchpot, as the case may happen to be.

It has already been stated, that a provision which a father may make for his child by will, in a case where the testator dies intestate as to part of his personal estate, shall not be brought into hotchpot (f).

[ocr errors]

(2) Taylor v. Taylor, ubi supra. But quære : Boyd v. Boyd, L. R. 4 Eq. 305.

(a) Taylor v. Taylor, ubi supra.

() 3 P. Wms. 317, note to Pusey v. Desbouverie. Elliott v. Collier, 1 Ves. Sen. 16. S. C. 3 Atk. 528 : nor, says Swinburne, money in his purse to spend among his equals, or buy him suits of apparel, or books, or armor for the service of his country: Swinb. Pt. 3, 8. 18, pl. 30.

(c) Swinb. Pt. 3, s. 18. pl. 19. Bac. Abr. tit. Exors. (K.). See also Taylor 0. Taylor, L. R. Eq. 20, 155 : where Sir G. Jessel, M. R., was of opinion that nothing was an advancement unless given on marriage or to establish the child in life, and accordingly he there held that (1) payment of a fee to a

special pleader in the case of a son
intended for the bar ; (2) price of outfit
and passage money of an officer and his
wife on going out to India with his
regiment ; (3) payment of debts incurred
by an officer in the army; (4) assisting
a clergyman in paying his housekeeping
and other expenses, were not advance.
ments. This view, which limits the
term advancement, was dissented from
by Pearson, J., in Re Blockley, 29 C. D.
250, and seems also to be at variance
with that of Sir W. Page Wood, V.-C.,
in Boyd v. Boyd, L. R. 4 Eq. 305.

(d) 2 Rop. Husb. & Wife, 12.
(c) 1 Atk. 403.

(f) Ante, p. *1370. Walton v. Wal. ton, 14 Ves. 324.

[*1376]

« 이전계속 »