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It is not necessary to notice here the cases which have occurred upon this subject; these relate chiefly to ambiguity and uncertainty in the meaning and intention of parties, and do not affect the general rules upon this subject.

5. The child being heir-at-law of his father in lands held in fee simple, or fee tail, or being heir in reversion, is barred from any filial portion under the custom; but being heir in lands of the tenure of borough English, or in copyhold or customary lands, is not so barred. (r)

Although the lands to which the heir succeeds be of

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very small revenue, peradventure not past a noble yearly

rent, and the goods very great in comparison of so small a rent," still the heir takes nothing according to the custom, and he has no power of collation as in the law of Scotland. (s)

That the heir in borough English, copyhold, or customary estate in lands, should not be barred of his filial portion of the personal estate under the custom, is laid down in the books treating of this matter (t); though this appears to be opposite in principle to what was decided as to the heir in lands of the tenure of borough English, and in copyhold or customary estate in the province of Canterbury. (u) In the cases last-mentioned, the heir in these was put upon the same footing with the heir in fee simple lands, both being entitled to share in the distribution of personal estate of their father; but in the province of York, a marked difference is made between the heir in freehold

(r) 4 Burn's Eccles. Law, 463.

(s) Swinb. 332.; 4 Burn's Eccles. Law, 463. If the heir takes nothing from his father in that character, I presume he is not excluded; but I have seen no direct authority for this.

(t) Ibid. 332.; 4 Burn's Eccles. Law, 464.

(u) Supra, p. 325.

estates, and the heir in the estates of the other tenures before mentioned. The heir in the first is barred from sharing; the heir in the other takes a share of the personal estate, with the other children.

6. If any child be fully advanced by the father in his lifetime, whether such advancement be by lands or hereditaments, or personal estate, such child is also barred from taking any filial portion under the custom. (x)

A good deal of intricacy appears to prevail upon this subject of advancement, in regard to what is a full, and what an imperfect advancement. It would not be profitable here to enter minutely into the cases which have been decided upon this subject. Swinburne (y) holds the opinion, that the gift of the father shall either be held to be an advancement, or no advancement; if it shall be found to be a preferment, then the child is excluded from receiving a filial portion; but if it shall be found to be no preferment, then the child is not barred from receiving a filial portion according to the custom. But the general opinion appears to be, that a short advancement is "to be brought into hotchpot with the children, but not with the widow." (2)

Again: a question hath arisen in case where a child hath received, in his father's lifetime, an advancement not only sufficient to debar him of his customary part, but so large as to extend into, or to overbalance, what would be his proportionable share also of the deadman's part; whether, in such case, the child shall receive any share of the deadman's part, unless he shall bring into hotchpot, in

(x) Swinb. 334.; 4 Burn's Eccles. Law, 459.

(y) Swinb. 338.

(*) 4 Burn's Eccles. Law, 468.

regard to the deadman's part, so much of his advancement as exceedeth his just proportion of the customary part. Upon this point various opinions have been held; and it does not appear to have been expressly decided; but in the case of Gudgeon v. Ramsden, Trin. 1692, it was decided, in a question between the heir, and a daughter (the only other child), who had a portion given her in marriage, in lieu and full satisfaction of what she might claim by the custom of the province, that the daughter must not bring back her portion into hotchpot, for that came in lieu of the customary part, and was as the price the father thought fit to give her for the same. (a)

Burn, however, considers that if there had not in that case been a special contract or agreement, as a purchase by the father from his child of her right to the customary part; and if the advancement had been general, without any respect either to the customary or distributive share, the decision might have been otherwise, and so as best to answer the intent of the statute, which expresseth "that the estate of all the said children shall be made equal, as near as can be estimated." (b)

7. When a man dies leaving a widow and an only child, being his heir-at-law, as before mentioned (rule 5.), the division of the personal estate shall be bipartite; one moiety to the widow, the other to the deadman's part. So also, when he dies leaving a widow, a child being his heir-at-law, and another child or other children, which other child or other children have been advanced by the father in his lifetime, the division of the personal estate

(a) Gudgeon v. Ramsden, T. 1692; 2 Vern. 274.

shall be bipartite, one moiety to the widow and the other to the deadman's part. (c)

8. If a man leave no widow, but only children, the division of the personal estate shall also be bipartite; one moiety to the children excluding the heir, the other moiety to the deadman's part, distributable by the statute; but if the younger children shall be fully advanced by the father in his lifetime, the whole shall go, under the statute, to the child being the heir-at-law. (d)

9. In regard to leases, the wife and children cannot have any rateable part thereof within the province, unless they prove that, by special custom of that place (namely, of that city, county, deanery, or parish where the intestate dwelt and had such leases), the wife and children were accustomed to have their rateable part, as well of the leases as of the moveable goods of the intestate; but if such special custom be proved, they may receive the rateable part as before, but not by the general custom of the province. (e) In regard to debts due to the intestate, the wife and children take their rateable parts thereof, after the same shall have been received by the administrator, but not before (f ); and in regard to estates pur auter vie, where not devised, these (in terms of the act 14 G. II. c. 20.) shall go and be distributed as the personal estate of the intestate would go and be distributed. Thus,

(c) 4 Burn's Eccles. Law, 472.

(d) Ibid. 471.477.

(e) Swinb. 302.; Burn's Eccles. Law, 461. (f) Swinb. 301.; Burn's Eccles. Law, 462.

part might go by the custom, and part by the statutes of distribution. (g)

10. If by settlement a jointure be limited to the wife in bar of her demands out of the personal estate of her husband under the custom, the division of the personal estate under the custom is bipartite as if no widow had existed, one half to the children, excluding the heir, the other half to the deadman's part. (h)

11. A child being of full age, for a valuable consideration may release his or her filial portion (i); and such release shall operate as if that child were dead, and his or her portion shall go to increase the shares of the other children. And the same thing shall result from the advancement of such child. If all the children release, or be advanced, and there be a widow, this also makes the division of the personal estate under the custom bipartite between the wife and the deadman's part; and if there be no widow, the whole shall be deadman's part. (k)

12. Grandchildren, or more remote decendants, take no share of the filial customary part; and thus, if an intestate leave a wife and only grandchildren, or more remote descendants, by the custom, the division of the personal estate is bipartite, one half to the widow, the other half to the deadman's part;

(g) 4 Burn's Eccles. Law, 463.

(h) 1 Vern. 15.; 4 Burn's Eccles. Law, 457. (i) 4 Burn's Eccles. Law, 461. note,

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