proportions specified. The legatees are not mentioned by name, but their identity as individuals is plainly shown. They are not in the ordinary sense members of a distinct class, for they have no relation to one another except as recipients of the testatrix's bounty. One of them is a corporation, and most of them are not relatives of the testatrix or of one another.

We are of opinion that the clause should be construed as if they were severally mentioned by name, to receive each a share in the proportion specified. If this is the meaning, under the rule stated in Jackson v. Roberts, 14 Gray, 546, the gift to any one of them who died before the testatrix would lapse. Such a result was reached in Sohier v. Inches, 12 Gray, 385, Lombard v. Boyden, 5 Allen, 249, Cummings v. Bramhall, 120 Mass. 552, Frost v. Courtis, 167 Mass. 251, 45 N. E. 687, and Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831. The strongest case cited for the pecuniary legatees on this point is Prescott v. Prescott, 7 Metc. 141, but the language of the will in that case was much less specific, as pointing to the individuals and to distinct proportions, than it is in this. We are of opinion that the present residuary clause should be treated as if it mentioned the legatees by name, and gave his proportional share in terms to each.

In this view, the share that was given to Annette M. Alden, which was 20/253 of the entire residue, lapsed, and passed to the next of kin as property undisposed of by the will.

It is contended that this share goes to the other residuary legatees. But as to this share, which is a part of the residuum, they are not residuary legatees. In Lyman v. Coolidge, 176 Mass. 7-9, 56 N. E. 831, 832, this court said: "But where a legacy lapses, which is a part of the residue, it cannot, according to our decisions, fall into the residue, because it is itself a part of the residue, and it must pass as intestate estate." This rule was also stated and applied in Sohier v. Inches, 12 Gray, 385, Lombard v. Boyden, 5 Allen, 249, Frost v. Courtis, 167 Mass. 251, 45 N. E. 687, Powers v. Codwise, 172 Mass. 425, 52 N. E. 525, and Best v. Berry, 189 Mass. 510, 75 N. E. 743, 109 Am. St. Rep. 651. It prevails in other jurisdictions. Kerr v. Dougherty, 79 N. Y. 327, 346, 349; Hard v. Ashley, 117 N. Y. 606, 23 N. E. 177; Humble v. Shore, 7 Hare, 247; Bagwell v. Dry, 1 P. Wms. 700.

It follows that the proportional part of the residuum which would have gone to Annette M. Alden if she had survived the testatrix will be divided among the next of kin. So ordered.**

49 In In Re Dunster, [1909] 1 Ch. 103, 105, 106, Neville, J., says: "There is a well-known rule that where residue is given to tenants in common and one of the tenants in common dies in the testator's lifetime, the lapsed share does not go as an accretion to the gift to the other tenants in common, but it is held that there is an intestacy and the share goes among the next of kin. That is, there can be no residue of a residue. The arguments by which this rule was arrived at are perfectly intelligible, and, one may say, plausible. Nevertheless, I think that the effect of it is to defeat the testator's intention in almost COST. WILLS-46

SECTION 6.-ADVANCEMENTS AND THE ADEMPTION AND SATISFACTION OF LEGACIES AND DEVISES "

GRATTAN v. GRATTAN.

(Supreme Court of Illinois, 1856. 18 Ill. 167.)

SKINNER, J. This was a bill in equity for distribution of an intestate's estate. The bill alleges that, in 1852, Silas Grattan died intestate, leaving the complainant, Azariah B. and Philip D. B. Grattan, his children, and sole heirs at law, and Elizabeth Grattan, his widow,

every case in which it is applied; but it is a rule by which I am undoubtedly bound. That rule has been held to apply in cases where the gift is to named persons but not to apply in cases where the gift is to a 'class.'"

Where the residue was given to five people, and the gift to one was revoked by a codicil, it was held that his fifth went to the next of kin, and not to the other residuary legatees. Waln's Estate, Vaux's Appeal, 156 Pa. 194, 27 Atl. 59 (1893). So where the gift to one lapsed. Gorga's Estate, Robinson's Appeal, 166 Pa. 269, 31 Atl. 86 (1895).

"It is true as a general rule that a testator is not presumed to bestow his bounty upon persons other than those who survive him, unless his intent to the contrary is evident. Where it appears, however, that a bequest or devise by will was made to discharge a duty or obligation resting upon the testator, this, in effect, will preclude a lapse of the bequest, although the legatee may die during the life time of the testator. For instance, the rule is well settled that a legacy or bequest made in payment of a debt does not lapse by the death of the legatee prior to that of the testator. This rule has been affirmed by the authorities where the debt or debts were barred by the statute of limitations at the time the testator executed his will. 2 Redfield, Wills (3d Ed.) 161; Williamson v. Naylor, 3 Yon. & Coll. Ex. 208; Turner v. Martin, 7 De G., M. & G. 429; Phillips v. Phillips, 3 Hare, 281; Ward v. Bush, 59 N. J. Eq. 144 [45 Atl. 534]." Jordan, J., in Ballard v. Camplin, 161 Ind. 16, 21, 22, 67 N. E. 505, 507 (1903). See, also, Stevens v. King, [1904] 2 Ch. 30. On statutes to prevent lapses, see 2 L. R. A. (N. S.) 580, note.

50 "While the term 'advancement' is generally used in cases of intestacy, the term is also used as applicable to cases of wills. Where in either event the intention is clear that the sums advanced should be deducted from the amounts due the devisee under a will, or heir in case of intestacy, that intention must prevail." Grant, J., in In re Bresler's Estate, 155 Mich. 567, at page 575, 119 N. W. 1104, at page 1107. On advancements to heirs, see 12 L. R. A. 566, note. "A legacy is, strictly speaking, adeemed (from adimere, to take away) when the thing given has, by some act of the testator, ceased to exist in the form in which it is described in the will, so that on his death there is nothing answering the description of the legacy to be given to the legatee. * * * A similar result follows where the testator performs the function of an executor, by giving during his lifetime what he intended the legatee to have by his will, thereby satisfying the legacy himself, leaving nothing for the executor to do in respect of such legacy. The distinction between the ademption and satisfaction of legacies seems clear enough, but it is not generally observed; the term 'ademption' being applied indiscriminately to cases where the legacy is cut off by the destruction or alteration of the subject, and where it is satisfied by the delivery of the subject to the legatee during the testator's lifetime." 2 Woerner's American Law of Administration (2d Ed.) 973, § 446. On the ademption of legacies, see 95 Am. St. Rep. 342, note.

51 The statement of facts is omitted.

him surviving, and seised of certain real estate in this state which descended to said heirs, and possessed of certain personal estate which remains for distribution among them; that said Silas, in his lifetime, conveyed and caused to be conveyed to said Azariah and to said Philip respectively, by way of advancements, and with the intention of providing for the complainant out of the remainder of his estate, certain real estate; that said Azariah and said Philip, at the time of making said advancements, were, and still are, infants, and that said Silas died without providing for complainant; that one Binckley is administrator of the estate of said Silas, and has in his hands said personal estate for distribution.

The bill makes said Azariah, Philip and Elizabeth, and said Binckley, defendants, and prays that said Azariah and Philip be compelled to bring into hotchpot with the estate of said Silas their respective advancements, or be barred from participating as heirs in the said estate. Upon the hearing the court dismissed the complainant's bill.

Without referring to the evidence, which appears sufficient to entitle the complainant to a decree, if the facts alleged entitle him to equitable relief, we proceed to examine the legal and equitable questions involved. Our statute provides that, "where any of the children of a persondying intestate, or their issue, shall haye received from such intestate, in his lifetime, any real or personal estate, by way of advancement, and shall desire to come into the partition or distribution of such estate with the other parceners or distributees, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, of such intestate; and every person so returning such advancement, as aforesaid shall thereupon be entitled tohis or her just proportion of said estate." St. 1856, p. 1201.

This provision is in harmony with the ancient customs of certain localities, and with the common law generally of England, with regard to lands descended in coparcenary, existing at the time of the settlement of the American colonies, and with the subsequent statute of distributions of 22 and 23 Charles the Second. Bacon's Abr. title "Coparceners," E.; Id. title "Uses and Trusts," D; Id. title "Executorsand Administrators," K; Williams on Ex'rs, 907; Id. 916 to 924; 2 Kent's Com. 420, 421, and 422.

The principle of the English statute is equality of distribution of the ancestor's personal estate among his children and their descendants; and such is the object and purpose of our statute, including both the real and personal estate of the ancestor.

An advancement is the giving by the intestate, in his lifetime, by anticipation, the whole or a part of what it is supposed the donee will be entitled to on the death of the party making it. And according to the decisions under the English and similar American statutes, the ancestor must have died intestate; the gift must have been made in his lifetime, and completely executed on his part, with the intention that the same should be the child's portion of his estate, or a part

of such portion; the gift to the child or heir, made in the lifetime of the intestate ancestor, is prima facie an advancement, and is to be treated, in case the party to whom the advancement was made comes in for his distributive share with his coheirs, as a debt due from him. to the estate, and may be deducted out of his share of the entire estate so brought together, if such share be sufficient for that purpose; the widow takes her share of the personal estate, and, of course, her dower in the lands, without regard to advancements, and the balance only, after deducting the widow's share, is treated as estate for distribution; the child advanced or provided for will be entitled to participate with his coheirs in the estate for distribution only upon bringing in what he has received by way of advancement, and taking, with them, of the whole estate so united, his equal portion; and the property or money advanced need not be returned in specie or kind, but is to be estimated according to its value at the time the advancement was made, and the heir so advanced and coming in will be entitled to his equal share of the whole, deducting the value of the advancement. 2 P. Williams, 440; Bacon's Abr. title "Executors and Administrators," K; Id. title "Uses and Trusts," D; Williams on Ex'rs, pp. 916 to 924; 2 Story's Eq. Juris. §§ 1202 to 1206; Jackson v. Matsdorf, 11 Johns. (N. Y.) 91, 6 Am. Dec. 355; Bemis v. Stearns, 16 Mass. 200; Osgood v. Reed, 17 Mass. 356; Elliot v. Collier, 1 Ves. 16; 3 Atk. 259; 8 Ves. 55; Stearns v. Stearns, 1 Pick. (Mass.) 157.

These rules, adopted by the courts in the construction and enforcement of a statute subsequently substantially incorporated into our law by legislative enactment, and consistent with the evident spirit and policy of the latter statute, are presumed to have been in the mind of the Legislature at the time of its adoption, and control its construction. Campbell v. Quinlin, 3 Scam. 289; Rigg v. Wilton, 13 Ill. 15, 54 Am. Dec. 419.

The heir advanced may, if he choose, retain what he has received, but if he does he must be content, and relinquish all claim of participation with his coheirs in the distribution or partition of the ancestor's estate.

Necessarily, therefore, it is for him to elect whether he will retain what has been advanced to him, and relinquish all right in the estate descended and for distribution, or will return or account for the advancement, and take of the entire estate commingled, equally with the other heirs.

Infants, for want of legal capacity, cannot exercise this power and right of election, and these infant defendants must be excluded from partaking in the distribution in this case, or the estate must remain in the hands of the administrator until they arrive at full age, unless equity will interpose, and, upon ascertaining what would be most beneficial for them under the facts, exercise for them this power.

A party entitled to one only of several things, at his election, where other rights are involved, must exercise such right of election in a

reasonable time, and if he does not, or cannot for want of legal capacity, in favor of other parties in interest, equity will do it for him, or bar him from a future exercise of the right. 2 Story's Eq. Jurisp. c. 30.

Courts of equity have a paramount jurisdiction in cases of administration and the settlement of estates, and may control courts of law in their action in the settlement and distribution of estates. 1 Story's Eq. Jurisp. c. 9; Williams on Ex'rs, pp. 1239, 1240; Lynch v. Rotan, 39 Ill. 19; Freeland v. Dazey, 25 Ill. 296; Townsend v. Radcliffe (decided June term, 1867) 44 Ill. 446.

They have, also, a similar and plenary jurisdiction over the persons and estates of infants, and will, in the exercise of that jurisdiction, cause to be done whatever may be necessary to preserve their estates and protect their interests. 2 Story's Eq. Jurisp. c. 35; Cowls v. Cowls, 3 Gilman, 435, 44 Am. Dec. 708. In this case, if the value of the advancements respectively does not exceed the share of the heir in the whole personal estate for distribution among the heirs, including the advancements, and the court upon a further hearing shall find it beneficial to the infant defendants to take their distributive shares and portions of the entire estate, instead of retaining their respective advancements, it will not be necessary to touch the real estate descended, but the advancement may be deducted from the share of the party to whom it was made; otherwise, in order to do complete equity to all, it may be necessary to make partition of such real estate, after disposing of the personal estate, according to the rights of the parties; and for that purpose it may, perhaps, be necessary for the complainant to amend his bill.

Decree reversed and cause remanded. Decree reversed." 52

52 "Hotchpot is the bringing into the estate of an intestate an estimate of the value of advancements made by the intestate to his or her children, in order that the whole may be divided in accordance with the statute of descents. Where those who have received advancements decline to bring the same into hotchpot when legally required to do so, they may in proper proceedings be excluded from participation in the division of the property of the intestate under the statute of descents." Whitefield, C. J., in Lindsley v. McIver, 57 Fla. 466, 48 South. 628 (1909).

On bringing into hotchpot, see 80 Am. Dec. 565, note. A child bringing an advancement into hotchpot should be charged with its value "without interest, the general rule being, as is well settled, that advancements do not bear interest." Cardwell, J., in McCoy v. McCoy, 105 Va. 829, 840, 54 S. E. 995, 999 (1906). That collateral kindred do not have to bring into hotchpot property given them is held in Johnson v. Antriken, 205 Mo. 244, 103 S. W. 936 (1907). In Hackleman v. Hackleman, 199 Ill. 84, 92, 65 N. E. 113, 116 (1902), the court said: "The father in his lifetime, by an arrangement in the nature of a family settlement, designated certain of his real estate as the separate property of each of his three children. The children acquiesced in the arrangement and each of them entered into the actual possession of the lands so allotted to them respectively. Their rights, after the death of the father, ought, in justice and fairness, to be the same as if they had inherited the lands in common and afterwards made, by parol, the same allotment that their father made during his lifetime and in which they each acquiesced. We know of no equitable reason or rule why a decree should not be granted securing to the