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 (g). And it seems that a portion, even while contingent, being capable of valuation, may be brought into hotchpot (h): 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 (k). 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 (q), viz., the value at the date of the 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 10,000l. 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 inadmissible 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. (t) Boyd v. Boyd, L. R. 4 Eq. 305. (u) Ibid. Taylor v. Taylor, L. R. 20 Eq. 155. (x) Boyd. 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 . Taylor, ubi supra. (y) Taylor v. Taylor, ubi supra. outfit of a son entering the army (z): the price of plant and machinery and other payments to start a child in business (a): have been held to be advancements. vancement. On the other hand, small inconsiderable sums of money given to a child by the father, or mere trivial presents he may what shall not make to a child, as of a gold watch, or wedding clothes, constitute an adshall not be deemed an advancement (b): 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 (d). In allusion to this distinction, it is conceived that Lord Hardwicke 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 (ƒ). But (2) Taylor v. Taylor, ubi supra. quare Boyd v. Boyd, L. R. 4 Eq. 305. (a) Taylor v. Taylor, ubi supra. (b) 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 I service of his country: Swinb. Pt. 3, s. 18, pl. 30. (c) Swinb. Pt. 3, s. 18. pl. 19. Bac. Abr. tit. Exors. (K.). See also Taylor v. 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 (f) Ante, p. *1370. Walton v. Walton, 14 Ves. 324. [*1376] Such a provision as shall be construed an advancement must result from a complete act of the intestate in his lifetime (g), by which he divested himself of all property in the subject: though, as it has just appeared, it is not requisite that it should take effect in possession till after his death (h). Still less shall property given *or bequeathed to the child by any other person be so denominated (i) and least of all shall a fortune of his own acquisition, however great (k). (g) Edwards v. Freeman, 2 P. Wms. 440. Toller, 380. (h) Ante, p. *1373. Toller, 380. Children-Who included. In all of the United States (subject to the rights of the surviving husband or wife already considered) lineal descendants of the intestate take his personal property to the exclusion of all other kindred. Such distribution, where no children have died leaving issue still surviving, is made in equal shares to all the children. Croswell on Exrs. 514; Schouler on Exrs. § 498; Woerner on Admn. § 65; Redfield Surr. Pr. 656. As to distribution of personal property, children of different marriages have, in general, equal rights, Marshall v. King, 24 Miss. 85; as in legacies, p. 361, American note, ubi supra; although by the statutes of descent the inheritance of the land is often confined to the blood of the ancestor from whom the property came. Posthumous children are included among children entitled to intestate distribution, Pearson v. Carlton, 18 S. C. 47; Hill v. Moore, 1 Murph. 233; as well as in legacies to "children," see p. 342, American note, ubi supra; and the right to take land by descent. Massie v. Hiatt, 82 Ky. 314. The share of such children is protected in most of the United States where the parent leaves a will making no mention of such children, see Vol. 1, p. 241, American note, ubi supra. For particular statement of the American statutes. see 3 Jarm. on Wills 783, n. And even where a son is expressly disinherited by his father's will, his right to share in any property as to which the father dies intestate remains intact. Briggs v. Wade, 124 Mass. 380; Rauchfuss v. Rauchfuss, 2 Dem. 271. On the other hand, a stepchild has no right to share with children in intestate distribution, Gazlay v. Cornwell, 2 Redf. 139; or legacies, p. 320, American note, ubi supra; nor the husband of a deceased child. Graham v. Babcock, 109 Ind. 205. Adopted children. In some states the adoption of children is provided for by statute with right of inheritance, "and all other legal consequences and incidents of the natural relation" of parent and child. California (Civ. Code, §§ 227, 1386), Louisiana (Civ. Code, § 214), Massachusetts (1882 P. S. c. 148, §§ 6, 7), Iowa (1888 R. C. § 2310), Pennsylvania (1883 Purd. Dig. 78, § 1), Texas (1888 R. S. Art. 2), Vermont (1880 R. L. § 2541). Such a statute is constitutional. Sewall v. Roberts, 115 Mass. 262. And an adoption made in another state in accordance with its laws will be recognized, although not fully in accordance with the laws of the forum. Ross v. Ross, 129 Mass. 243. Under these statutes an adopted child is entitled to the distribution of intestate personalty to the exclusion of all collateral next of kin. Burrage v. Briggs, 120 Mass. 103; Estate of Newman, 75 Cal. 213; Vidal v. Commagère, 13 La. An. 516. And, in Louisiana, he cannot be disinherited. Succession of Hosser, 37 La. An. 839. The adopted child stands as a lawful child in relation to the share of the widow, Eckford v. Knox, 67 Tex. 200; and although he was adopted before the marriage, the widow takes one-third only, and not one-half as in the case of no issue. Estate of Rowan, 132 Pa. St. 299. If the children of a daughter are adopted by their grandfather, they will take a distributive share with his other children, besides being entitled to their mother's share as her descendants. Wagner v. Varner, 50 Ia. 532. As to an adopted child taking by devise see Johnson's Appeal, 88 Pa. St. 346; Wyeth v. Stone, 144 Mass. 441; Russell v. Russell, 84 Ala. 48; and see p. 320, American note, ubi supra. Illegitimate children. An illegiti mate child has no right to take a distributive share even of the estate of his deceased mother unless the right is conferred upon him by statute. Croswell on Exrs. § 521; Woerner on Admn. § 75; Cooley v. Dewey, 4 Pick. 94. In most of the United States there are statutes providing in some degree for such right of succession to the mother's estate at least. And in many there are also statutory provisions rendering legitimate the issue of parents who afterward marry. A statute legitimating a bastard will give him no capacity of inheriting if his father is not named in the act. Lee v. Shankle, 6 Jones 313. But when legitimated, a bastard can take as 'lawful issue," Miller's Appeal, 52 Pa. St. 113; or "heir at law," Williams v. Williams, 11 Lea 652; or 'children," Carroll v. Carroll, supra, and a father leaving such child cannot be held to have "died without an heir." McGunnigle v. McKee, 77 Pa. St. 81; Carroll v. Carroll, 20 Tex. 731. In the Connecticut statute of distributions "children" has been held to include illegitimate children, Heath v. White, 5 Conn. 228; but not in Massachusetts, Cooley v. Dewey, 4 Pick. 93; nor in a statute providing for children omitted in a will. Kent v. Barker, 2 Gray 535. As to the right of an illegitimate to share in a legacy to " children," see p. 322, American note, ubi supra. the effect of illegitimacy upon the rights of more remote descendants or next of kin claiming distribution, see p. *1389, American note, ubi infra. As to By statute an illegitimate child may inherit from his mother, in California (Civ. Code, §§ 1387-88), Indiana (1894 Rev. § 2629), Illinois (1891 R. S. c. 39, § 2), Iowa (1888 R. C. § 2465), Kansas (1889 G. S. § 2613), Maine (1883 R. S. c. 75, §3), Maryland (1888 P. G. L. Art. 46, § 30), Massachusetts (1882 P. S. c. 125, § 3, 4), including the right to take as her lawful issue any estate that would come to her by distribution or otherwise; Michigan (1882 An. Stats. § 5773 a), Minnesota (1891 Stats. § 568), Missouri (1887 R. S. § 4473), New Hampshire (1891 P. S. c. 196, § 5), with legitimate children; New Jersey (1877 Rev. 785, 147), if she leave no husband or issue; New York (1855 P. L. c. 547, § 1), Ohio (1890 R. S. § 4174), Pennsylvania (1883 Purd. Dig. c. 187, § 7), Vermont (1880 R. L. § 2232). Virginia (1887 Code, § 2552). And if an illegitimate child die intestate and without issue, his property goes to his mother, in New Jersey (1877 Rev. 784, § 147); New York (2 R. S. 97, § 75), or his next of kin through her if she does not survive him. An illegitimate child takes a distributive share of his mother's property with her legitimate children, in Maryland. Earle v. Dawes, 3 Md. |