their own right, and not by representation, they would have taken per capita.

432. Ancestral lands.

At common law, in case of failure of lineal descendants of the person last seised, the land passed to his collateral relations, provided only they were of the blood of the first purchaser, by whom the land was brought into the family.20 This rule of the common law survives to some extent in the statutory provisions, found in a number of states, to the effect that, if the land came to the intestate otherwise than by purchase, or, in some states, if it came to him either by descent or by gift or devise from an ancestor, it shall pass, not to his kindred generally, but only to such kindred as are of the blood of the ancestor from whom it was derived by him.80 Of the same nature is the provision found in many states that, upon the death of a minor unmarried, leaving property inherited from either parent, it shall go to the other children of the same parent.31 The word "ancestor," used to describe the person from whom the land must have come in order to be within the operation of the provision, refers to any person, whether lineally or collaterally related to the intestate, from whom the land might pass to the latter under the laws of descent, and from whom the land did in fact actually pass directly to the intestate."

§ 433. Illegitimate children.

32

At common law, a child born out of wedlock was regarded as filius nullius, and as consequently bearing no relationship

29 Litt. 4; 2 Bl. Comm. § 220.

80 1 Stimson's Am. St. Law, § 3107.

811 Dembitz, Land Titles, § 36; 1 Stimson's Am. St. Law, § 3101. 82 Buckingham v. Jacques, 37 Conn. 402; Wheeler v. Clutterbuck, 52 N. Y. 67; Prickett's Lessee v. Parker, 3 Ohio St. 394; Brower v. Hunt, 18 Ohio St. 311; Morris v. Potter, 10 R. I. 58.

to any persons other than his own offspring. Consequently he could be the heir neither of his own father or mother, nor of any other person, and no persons could inherit from him except the heirs of his body.38 This rule has been changed generally in this country by various statutory provisions. In the first place, the state statute frequently provides that the intermarriage of the parents after the birth of the child, or such intermarriage when accompanied by the father's acknowledgment of the child, shall render the child legitimate, and in some states the acknowledgment by the father without intermarriage has this effect. In some states the statute provides, however, that an acknowledgment of the child shall not enable the child to inherit from the kindred of the father.34

In most states, by statute, the illegitimate children inherit from the mother equally with the legitimate children, and in some states they inherit also from her kindred, though in a majority of the states, while inheriting from the mother, they do not inherit from her kindred. In a few states they inherit from the mother only in case of default of lawful 18sue.35 The property of an illegitimate child will descend to the surviving husband or wife, or to the children, as in the case of any other person dying intestate. In default of such others entitled to inherit, the decedent's property goes usually, under the statute, to his mother and her kindred."

434. Unborn children.

At common law, a child en ventre sa mere at the time of

88 1 Bl. Comm. 459; 2 Kent's Comm. 212.

84 1 Stimson's Am. St. Law, §§ 6631, 6632.

§ 75..

1 Stimson's Am. St. Law, § 3151; 1 Woerner, Administration,

86 1 Stimson's Am. St. Law, § 3154; 1 Woerner, Administration, 75.

the death of the intestate is regarded as living for the purpose of taking from him by descent. This rule is confirmed by statute in many states, but in some the statute applies only to a child of the intestate born after his death, and, in others, only to posthumous children descended from him.38

An advancement is a giving, by anticipation, to a child or other relative, of a part or the whole of what the donee would receive on the death of the donor intestate, with the result, generally speaking, that the amount thereof is deducted in determining the share of such donee after the donor's death. This doctrine of advancements is based exclusively on statutes, and these differ very considerably in the different states. In some states the statute applies only in the case of an advancement to a child or children of the intestate, so that a gift to a grandchild would not be charged against him as an advancement. In some states a gift to any descendant of the intestate is regarded as an advancement to him, for the purpose of determining his share of the inheritance, and in a number of states a gift to a child or other descendant is, in case such child or descendant dies before the donor, charged against the share which he would have taken, and so deducted from the share taken by his children or descendants. In a few states a gift to any possible heir is regarded as an advancement in case the donee turns out to be the actual heir.39

* 4 Kent's Comm. 412; Challis, Real Prop. 111; Doe d. Clarke v. Clarke, 2 H. Bl. 399.

88 1 Stimson's Am. St. Law, §§ 2844, 8135, 3136; 1 Woerner, Administration, § 74.

89 1 Stimson's Am. St. Law, §§ 3163, 3164, 3168; 2 Woerner, Ad. ministration, § 559.

41

The question whether a gift to a possible heir or distributee is to be regarded as an advancement is a question as to the intention of the donor, and, apart from statute, a gift to an adult child, if of substantial value, is usually presumed to be an advancement.40 In a number of states there are statutory provisions to the effect that the gift, in order to constitute an advancement, must be acknowledged in writing as an advancement by the donee, or must be expressed in the gift or grant to be made as such, or must be so charged by the donor in writing. In some states it is provided that maintaining, educating, or giving money to a minor child, without any view to a portion or settlement for life, is not an advancement.42 The statute in many states declares that, if the amount of the advancement exceeds the share to which the donee would be entitled on the death of the donor intestate, though he need refund no part of what he has received, he can receive nothing further from the intestate's estate. In case the advancement is not equal to the share to which he is entitled, the donee, in a number of states, is given so much of the intestate's property as will make all the shares equal; and in some states it is provided that the advancement is to be charged against the share to which the donee is entitled in either the real or the personal property, according as the advancement may have been the one or the other, and that, if the advancement would exceed the amount to which he may be entitled out of either class of property, his share in the other class shall be proportionally reduced. In some states it is provided in terms that the donee must, in order to obtain his proper share in the intestate's property, bring the amount of the advancement into "hotch pot,"

40 1 Woerner, Administration, § 555. 411 Stimson's Am. St. Law, 3162. 421 Stimson's Am. St. Law, § 3161.

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that is, he must contribute to the common fund the amount of his advancement, and shall then receive therefrom the same amount as if the advancement had not been made.48

The statutes in regard to advancements have no application, as a general rule, in the case of a partial intestacy, since it is presumed that the will would have mentioned any gifts which it was intended should be regarded as advancements.“

481 Stimson's Am. St. Law, § 3163.

441 Woerner, Administration, § 558; 1 Dembitz, Land Titles, ¡ 248.

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