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.

(993)

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, I 248.

(994)

By the adverse possession of land belonging to another, for the period prescribed by statute for the bringing of an action to recover land, not only the right to bring such action is barred, but the person in possession is usually regarded as acquiring the ownership of the land in fee simple.

The adverse possession must be continuous and uninter rupted for the statutory period, but it need not be by the same person during all that period, it being sufficient that there be a privity between the persons successively in possession.

If the owner of the land is under a disability at the time of the beginning of the adverse possession, so as to be unable to sue on account thereof, he is, by the statute, given a certain period after the expiration of the disability for the bringing of an action against the person in possession. The statutory period, moreover, does not, in the absence of a specific provision to the contrary, run in favor of a person in possession of land belonging to the sovereign.

The possession, in order to have the effect of barring the right of action, or of transferring the ownership, must be actual, visible, and exclusive, and must be hostile to the owner,

—that is, it must be under a claim of right, and such as to exclude any recognition of the rights of the true owner.

One in adverse possession of part of a tract of land, to all of which he has color of title, is regarded as in constructive possession of the whole tract, as against the owner who is not in possession of any part thereof.

436. General considerations.

There were, even in early times, numerous statutes adopted in England limiting the time within which an action could be brought on account of a disseisin of land, but these differed from the statutes of the present day in that, instead of naming a certain number of years before the institution of the action beyond which no disseisin could be alleged, they named a certain year back of which the pleader could not go.1 The last statute which adopted this method of fixing the period of limitation was St. Westminster I. c. 39,2 which forbade the seisin of an ancestor to be alleged in a writ of right prior to the beginning of the reign of Richard I. (A. D. 1189), and for other writs fixed the year 1217. Thus, under this statute, at the time of its passage, the period of limitation for some writs was fifty-eight years, and this period was lengthened, as time went on without any change in the law, so that it exceeded three hundred years when, by 32 Hen. VIII. c. 2,3 a change was made, and the modern method was adopted of fixing a certain number of years with

1 Thus the earliest date at which the seisin of an ancestor could be alleged in a writ of right was the beginning of the reign of Henry I. (A. D. 1100), until this was changed by the Statute of Merton to the beginning of the reign of Henry II. (A. D. 1154). Other dates were fixed for other writs.

8 Edw. I. (A. D. 1275).

A. D. 1540. The disadvantages of the long period of limitation was, however, to a great extent avoided by the system of levying ines. See Lightwood, Possession of Land, 156.

in which the action must be brought. This last statute, however, applied only to the old real actions, and, the action of ejectment having to a great extent taken their place, St. 21 Jac. I. c. 16, was passed, which provided that no person should thereafter make any entry into any lands, tenements, or hereditaments but within twenty years next after his or their right or title shall have accrued. This statute, while not in terms applying to the action of ejectment, did so in effect by barring the right of entry on which the action depended. This statute of James I. is that on which the statutes in this country are more or less modeled. It has been superseded in England by later statutes, which tend to bar an action to recover land after the statutory period has elapsed without reference to the character of the possession of the defendant in the action. In that country the problem is much simplified, however, by the absence of wild and unsettled lands. In this country, many perplexing and difficult questions have arisen under the statutes as to the character of the possession of the land which one must have for the statutory period in order that the rights of the original owner may be barred. A possession for the statutory period which is sufficient to bar an action to recover the land is known as "adverse possession," and one who thus acquires rights in the land as against the former owner is said to acquire title by "adverse possession."

While occasionally the state statutes may expressly provide that a failure to re-enter or bring an action to recover the land within the statutory period shall operate to transfer the title to the person in possession, they almost invariably in terms bar the remedy merely. They have, however, with but few, if any, exceptions, been construed as operating to

A. D. 1623.

3 & 4 Wm. IV. c. 27; 87 & 38 Vict. c. 57,-"Real Property Limitation Acts" of 1833 and 1874.