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person that can take, the statute vests the right in that person. (e)

Also, in cases regarding the distribution of personal estate, an infant in ventre sa mere shall be held to be entitled to a share by the statute. (ƒ)

By the words of the statute, "such as shall legally represent such children," their lineal descendants to the remotest degree are called, to the exclusion of the collateral next of kin, and the widows of such descendants. (g)

3. If all the children, where there are more than one, be alive, the distribution among them shall be per capita, share and share alike; but if some of the children be alive, and others or other be dead, leaving descendants, each surviving child shall take one share; and the descendants of each child deceased shall take the share of such child by representation, under similar rules of succession. (h)

4. If all the children be dead, leaving only grandchildren, the succession shall also be divided among such grandchildren, per capita, share and share alike, and not by way of representation: but, in such case, if some of the grandchildren be alive, and others or other be dead, leaving descendants, a similar rule shall obtain, as above stated, in the case of children; and the same rule shall take place if there be only remote descendants. (¿)

Thus, while there are descendants, these exclude every other species of kindred. In the descending line, repre

(e) Davers v. Dewes, in notis, 3 P. Will. 50.; Palmer v. Garard, H. 1690, Pre. Ch. 21.; 4 Burn's Eccles. Law, 396.

(f) Ball v. Smith, Freeman, 230.; 4 Burn's Eccles. Law, 396. (g) Williams on Executors and Administrators, 915.

(h) 4 Burn's Eccles. Law, 411.

(i) Ibid. 412.

sentation is admitted to the remotest degree. When the descendants are all equal in degree, whether nearer or more remote, the distribution is per capita. Where there are descendants in different degrees entitled to share, the descendants in the remotest degree take per stirpes.

In this the law of England differs from the civil law, as laid down in the 118th novel of Justinian. According to it, in the succession of grandchildren, or other descendants, these took per stirpes in every case, being entitled to the same share of the intestate's estate, which their parents would have had, if such parents had lived. (k)

Yet,

5. The descendant being the heir of the deceased ancestor shall take a share of the personal estate with the other children, or descendants, according to the above rules of distribution, without any abatement, in respect of the land or real estate, which he hath, by descent or otherwise, from the ancestor. if such heir have had any advancement from his father in his lifetime, otherwise than by land or real estate as aforesaid, if there be other children, or descendants of them, he shall abate for such advancement in like manner as the other children shall abate for advancements made to them. (7)

In like manner it seems that coheiresses shall bring together into hotchpot such advancement (not being lands) as they shall respectively have received from their father, before they shall be entitled to receive their distributive shares, agreeably to the general purport of the act, which is, evidently, to promote an equality as much as may be. (m)

(k) Novel, 118. c. 1. (m) Ibid.

(1) 4 Burn's Eccles. Law, 397.

It has been matter of question whether the heir in lands held by the tenure of borough English (being the youngest son), should abate for these lands, or should be considered as an heir-at-law, who by the statute is to have a distributive share, without any allowance for lands by descent. In the case of Pratt v. Pratt, in E. 5 G. II., it was ruled by Sir Joseph Jekyll, Master of the Rolls, that the heir should allow for those lands; for he said the statute only intended to provide for the heir of the family, who is the common law heir, and not for one who is only heir by custom in some particular places. (n)

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But in the case of Lutwyche v. Lutwyche, E. 1733, where a similar question occurred, whether the youngest son, who took a copyhold estate of the tenure of borough English, should have an equal share of the personal estate with the other children, or only so much as, with that copyhold, should make his portion equal to that of the other children; By Talbot Lord Chancellor, "The heir at law is the eldest son, and not the heir in borough English, and the exception in the statute extends only to the eldest son; yet, nevertheless, the youngest son, who is heir in borough English, shall not bring the borough English estate into hotchpot. There is no law to oblige him to do this, but only the statute; and there are no words in the statute which require it; for the statute speaketh only of such estate as a child hath by settlement, or by the advancement of the intestate during his lifetime." And it was decreed that the youngest son should have an equal share with the other children, without regard to the borough English estate.

And the case of Pratt v. Pratt having come afterwards before Lord Chancellor Talbot, he reversed the decree of

(n) 2 Strange, 935.; 4 Burn's Eccles. Law, 397.

the Master of the Rolls, and decreed agreeably to this case. (0)

6. In case of the intestacy of the father, if any child other than the heir-at-law have received an advancement from the father in his lifetime, either of lands or personal estate, by settlement or otherwise, such child shall bring this advancement, or the value thereof, into hotchpot (or collation) with the other children, before he or she shall be entitled to receive his or her distributive share of the father's personal estate. And the same rule shall obtain in the case of the advancement of a child, when his or her descendants claim a distributive share by representation in the personal estate of the ancestor. (p)

The questions which have occurred in regard to the advancement of children, and what shall or shall not be deemed an advancement, are numerous and of considerable intricacy; it would not be profitable to enter into these in this place.

It is important to remark, however, that the rule obliging children to pay their advancements into hotchpot, applies only in a case of actual intestacy; for where there is a will, and a residuary estate, not disposed of by that will, is to be distributed by the executor, in such case a child, advanced by a father in his lifetime, cannot be called upon to bring his or her advancement into hotchpot, in claiming a share of the residuary estate. (9)

(0) Cas. temp. Talb. 276.; 4 Burn's Eccles. Law, 398. (p) 4 Burn's Eccles. Law, 398. et sequen.

(9) Walton v. Walton (M. 1807.), 14 Ves. 324. If no executors were appointed, would the same rule apply in the case of an administrator with the will annexed?

It is also to be remarked, that a child advanced in part shall bring in his or her advancement only among the other children; and that no benefit shall accrue from it to the widow. (r)

The rules in regard to the advancement of children, are extended to grandchildren claiming their parent's distributive share per stirpes in the succession of the grandfather, where the parent had been advanced; in such case, the grandchildren are to bring their father's advancement into hotchpot. (s) But it does not appear to have been decided whether the same rule would obtain where grandchildren were claiming per capita; nor whether advancements to grandchildren, or other more remote descendants, should or should not be brought into hotchpot before such grandchildren, or other more remote descendants, should be entitled to share in the succession. (t)

Nor has it been decided whether grandchildren advanced, some more, some less, by their father in his lifetime, shall bring their several advancements into hotchpot, one with the other, before they shall distribute their deceased father's share of their grandfather's personal estate. (u)

But whatever a child receives out of the mother's estate, it is said, shall not be brought into hotchpot in taking a distributive share of that mother's estate. So it was decided by Lord Chancellor King, in the case of Holt v. Frederick, T. 1726. (x)

7. In case there be no children, or legal representatives of them, a moiety of the intestate estate

(r) Ward v. Lant, Prec. Chanc. 182. 184.; Kirkcudbright v. Kirkcudbright, 8 Ves. 51. 64.; 4 Burn's Eccles. Law, 402.

(s) 4 Burn's Eccles. Law, 403.

(t) Ibid.

(u) 4 Burn's Eccles. Law, 403.

(x) 2 P. Will. 356.; 4 Burn's Eccles. Law, 402.

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