has received only a partial advance from the father, upon bringing such partial advance into hotchpot with the other children, such child may receive his or her customary share with them; and such advance is not to be brought into hotchpot with the widow, but only with the orphanage part. (z) Here, as in regard to the rules of distribution in the province of Canterbury, and by the custom of the province of York, a good deal of uncertainty appears to prevail on the subject of advancements to children. Many cases have been decided upon this subject, into which it would not be profitable to enter minutely here. It may be noticed, however, that if a freeman hath advanced his child on marriage, this is to be taken as a full advancement, unless the father shall by writing under his hand not only declare that such child was not fully advanced, but likewise mention, in certain, how much the portion given in marriage did amount to, that so it may appear what sum is in such case to be brought into hotchpot; and then every child producing the writing of the father, and bringing the portion into hotchpot, shall have as much as will make up to the same a full child's part or portion of the customary estate; and no declaration of the father that the child was fully advanced, or not advanced, will be of any avail. (a) In the case of Annand v. Honeywood, M. 1685, the question was whether money given by the father to be laid out in land, to be settled on a son and his intended wife for their lives, with remainders in tail, should be reckoned (z) 4 Burn's Eccles. Law, 451. (a) Jenks v. Holford, 1 Vern. (61.; Civil v. Rich, 1 Vern. 216. ; Chace v. Box, Ld. Raym. 484.; Green's Priv. of Lond. 53.; Dean v. Lord Delaware; 2 Vern. 630.; Cleaver v. Spurling, 2 P. Will. 527.; 4 Burn's Eccles. Law, 446. to be an advancement by part of the personal estate of the father, so as that the son ought to bring the same into hotchpot, to entitle him to a share of the personal estate : the Lord Chancellor said there was no colour to reckon this any part of the personal estate. (b) Where the advancement shall have exceeded the child's share by the custom, it has been said that if it have been given and accepted expressly in satisfaction of the customary share, no respect shall be paid to such advancement in the distribution of the deadman's part; but that where there is no such special contract or agreement, and the advancement is general, it shall be applied either to the customary share only, or both to the customary and distributive share, according to the amount of the advancement. (c) If 7. The child of a freeman of London, when of age, may, in consideration of a present fortune, bar himself or herself of all right to the customary part; and such release, or an advancement of that child, shall operate as if that child were dead, and go to increase the shares of the other children. all the children release or are advanced, and there be a widow, this also shall make the division of the personal estate under the custom bipartite, between the wife and the deadman's part. If there be no widow, but only children, the division also shall be bipartite; one moiety to the children, the other to the deadman's part. (d) But it has been held that a release by a child of a cus (b) 1 Vern. 345. (c) Foster on Executors, 395.; Burn's Eccles. Law, 460. tomary share, without a valuable consideration, would not be good (e): and if a man, who is of age, marries a freeman's daughter, who is under age, he may bar himself of any future right to his wife's customary share. (ƒ) 8. Grandchildren, or remoter descendants, take no share of the filial customary part; and thus, if an intestate leave a wife and grandchildren or remoter descendants, by the custom the division of the personal estate shall be bipartite; one half to the widow, the other half to the deadman's part: but the wife shall take not only one half of her share under the custom, but one third of the deadman's part under the statute; and the other two thirds of the deadman's part shall go to the grandchildren or other descendants under the statute.(g) Thus there is a similar intricacy in the distribution of the personal estate of a freeman of London as of that of an inhabitant of the county of York. In regard to the former, however, the heir is entitled to a customary share with the other children, as in the province of Canterbury. 9. If a person leave no wife, but an only child, being advanced or partly advanced, though such child might be barred by the custom, or obliged, if there were other children, to bring his or her advancement into hotchpot, such` only child shall take the whole personal estate, and may, if at the (e) Morris v. Burroughs, 1 Atk. 401.; 4 Burn's Eccles. Law, 448. (f) Cox v. Belitha, 2 P. Will. 272.; Ives v. Medcalfe, 1 Atk. 63. ; 4 Burn's Eccles. Law, 449, 450. (g) Fowke v. Hunt, 1 Vern. 397.; Northey v. 341.; 4 Burn's Eccles. Law, 451. Strange, 1 P. Will. years 10. The customary share of the wife shall vest immediately upon the death of the husband; but the customary shares of the children, if more than one, are not vested till they respectively attain twenty-one years of age. (k) There are several intricacies in regard to this rule. If an orphan die unmarried before attaining twenty-one years of age, his or her orphanage share shall accrue to the other or others of the orphans; and no orphan, till attaining such age, can make a will of his or her orphanage share. But the share which any child takes by accruer or survivorship in the orphanage share of a brother or sister deceased, is vested and becomes distributable by the statute of distributions. (1) It has been decided, however, that an orphan under age cannot devise by will what accrued by survivorship any more than his own original share. (m) On the other hand, the shares of the children in the deadman's part are vested immediately on the parent's death, and may be disposed of by will or otherwise, as they might be by the statutes in the province of Canterbury and if there shall be only one child, the share of such child, whether under the custom or under the statute, shall be vested immediately on the death of such child, and will pass to his or her executors or other legal representatives. (n) (h) Supra, p. 311. (i) 4 Burn's Eccles. Law, 442-451. (k) 4 Burn's Eccles. Law, 444. (1) Anon. Prec. Chanc. 537.; 4 Burn's Eccles. Law, 444. (m) Harvey v. Desbouverie, Cas. temp. Talb. 135.; Executors, 955. Williams on Some of the rules of the custom of London, particularly those in regard to the accruer of the orphanage shares of children dying under age, are important, and may be worthy of consideration in any general revision of the law. Formerly the Court of Orphans had been accustomed to exercise a similar charge of the persons of their orphans, in respect to marriage, as is exercised by the Court of Chancery, in regard to the wards of that court. In the Court of Orphans marriage was discouraged till the orphans or wards should attain twenty-one years of age. It appears to be uncertain, whether when a man marries an orphan, who dies under twenty-one, her orphanage share shall accrue to the other orphans, or go to her husband. In the case of Fouke and Lewen, M. 1682, it is said that if a man marries an orphan who dies under twenty-one, her orphanage part shall not survive to the other children, but shall go to the husband. (0) But in Merriweather and Hester, T. 5 G. 1. (p), it is said that if a man marries an orphan, yet till twenty-one his right is not so vested, as to prevent his wife's share from surviving, in case she died before twenty-one; and Blackstone says, that if the children of a freeman die under the age of twentyone, whether sole or married, their share shall survive to the other children. (q) 11. A wife divorced for adultery shall not have her customary share. (r) So where a freeman husband was attainted of felony, and pardoned on (0) Fouke v. Lewen, M. 1682, 1 Vern. 88, 89.; 4 Burn's Eccles. Law, 444. (p) Anon. Prec. Cha. 537.; 4 Burn's Eccles. Law, 444. (q) 2 Blacks. Com. 518. (r) Bunb. 16.; 4 Burn's Eccles. Law, 444. This refers to a divorce in the Ecclesiastical Courts; a divorce a vinculo matrimonii would change them to single persons. |