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daughter should not bring the 10001. which she had received in her mother's lifetime, into hotchpot (4).
By what has been said, it may be perceived, that where the intestate leaves a widow and children, or the representatives of children, one-third of his personal estate shall go to his widow (5), and the residue to his children; or if dead, to their representatives, that is, their lineal descendants, such of the children, or the representatives of such of them, as have been advanced as aforesaid, first bringing such advancement into hotchpot, in case they choose to claim their distributive share ; and of such advancement, when the same shall be so brought into hotchpot, the widow shall have no advantage. Now we may consider how the residue of the intestate's estate is to go to his children, or if dead to their
(4) Money laid out by the intestate on repairs of houses, which descended to his eldest son, as heir, is not an advancement, but it would have been so if the father had first vested the estate in his son, and had afterwards given him the money to improve it. 5 Ves. 721. A provision which a father may make for his child by will (for a case may occur where a testator may die intestate as to part of his personal estate) is not considered in the light of an advancement; nor is land given by the father's will to a younger child. 2 P. Wms. 440. 446. Neither is property given or bequeathed to the child by any other person to be denominated an advancement. 3 Bac. Abr. 76. A provision which operates as an advancement, must result from a complete act of the intestate in his lifetime, by which he divested himself of all property in the subject, though it may not take effect in possession until after his death. 2 P. Wms. 440. The use of furniture for life has been regarded as an advancement pro tanto. Com. Dig. Administration, (H). Fitzg. 285.
(5) A widow takes as widow by the express words of the statute, and not as being of kin; for neither a wife nor a husband are, as such, of kin to each other. Worsley v. Johnson, 3 Atk. 761. Bailey v. Wright, 18 Ves. 54. A widow may be excluded from any distributive share by the statute, if by settlement a jointure is limited to her in bar of all her demands out of the estate of her husband, by virtue of custom or otherwise. 1 Vern. 15.
representatives, that is, their lineal descendants. And here we may observe, the doctrine and limits of representation, as laid down in the statute of distributions, seem to have been principally borrowed from the civil law ; whereby it will sometimes happen that personal estates are divided per capita, as when every claimant claims in his own right; and sometimes per stirpes, as when the claimants claim by representation, or in the right of another. They are divided per capita to every one an equal share, when all the claimants claim, in their own rights, as in equal degree of kindred, and not by representation in the right of another person f. That this may be rightly understood, let us first suppose, That neither of the intestate's children hath died leaving children. 2. That the intestate's children are all dead; whether they were two, or three, or more; each of them having left children; as it may be, one of them two, another three, or more. 3. That some of the intestate's children are living, and some dead; and that those who are dead have each left children.
As to the first supposition, it is sufficiently clear, that if neither of the intestate's children hath died leaving children, the residue as aforesaid, or the remaining two-thirds, after the wife has had her third, shall be equally divided between all the children of the intestate; as in this case they all claim in their own right: and where a man marries a woman, and hath issue by her, as it may be, sons and daughters, and the wife dying, he marries another woman, by whom he hath also sons and daughters : now these, though they are called brothers and sisters, are but brothers and sisters of the halfblood; because they had not both but one father and mother 8: yet between these no distinction is, or (as I conceive) ever was made ; but in respect to collaterals, who may take where there are no lineal descendants; there are several precedents of judgments given since the statute, allowing the half-blood to have but an half-share: but now these are upon the same footing with the whole blood, in respect to what they are entitled to in the distribution of personal estateh. Yet in respect to real estate, the whole blood is always preferred, and the half-blood is no blood inheritable by descent, as we shall see in the ensuing chapter. Where a father leaves behind him one or more children, and his widow shall happen to be with child, the child in the mother's womb will be reckoned among the children of the deceased; and if the other children should proceed to a partition of the estate, it will be necessary to lay aside one share for the child that is to be born, and to name a curator to it, who may take care of its interesti. But this provision is rendered more effectual by the statute ; which, as we have seen k, requires that no distribution shall be made till after the expiration of one year from the intestate's death, within which time the child will be born. · As to the second supposition, as that the intestate's chil. dren are all dead, whether they were two or three, or more, each of them having left children, as it may be one of them two, another three, or more; in this case, where there be only grandchildren, their fathers or mothers respectively having died in the lifetime of their grandfather, the grandchildren take in their own right, and not by representation of their father or mother deceased; and the courts, where distributions are cognizable, will order an equal distribution to be madel. And thus it would be, if there were only great-grandchildren of the intestate, both his children and grandchildren having all died before him.
2 Black. Com. 517.
8 Terms de Ley.
As to the third supposition, as that some of the intestate's children are living, and some dead, and those that are dead have left children ; in this case, the grandchildren take by representation, and not in their own right, and the issue of each deceased child stand in the place and stead of their deceased parent. As suppose the intestate to have had three children, A, B, and C, and one of these children to be dead, as it may be A, leaving three children; and another
h 4 Burn's Eccles. Law, 357.
k Page 84.
dead, as it may be B, leaving two; then the distribution must be one-third to A's three children, and another third to B's two children, and the remaining third to C, the surviving child. But if C had also died, and left no issue, then A's and B's five children, being all in equal degree of kindred, would take in their own right, each of them an equal share, in like manner as is just before mentioned under the second supposition.
By this we may perceive in what manner the intestate's personal estate is to be distributed, where he has left a wife and children, or representatives of children. But before we conclude this, and proceed to another part of the statute of distributions, it may be proper to observe, that if the intestate leaves but one child, or the representative, that is, the lineal descendant of one child, such one child, or the representative of such, will be entitled to the same share in the distribution, as if there were more than one ; for where there is only one person that can take, the statute vests the right in that person m. And although by the statute, no distribution is to be made within a year; yet the right of the distributive share vests immediately on the intestate’s death. As where a person, intitled to a distributive share of an intestate's estate, died within a year after the intestate, it was decreed that the share of the deceased person was an interest vested and transmissible to his executors or administrators ; for in this sense the statute makes a will for the intestate, and it is as if a legacy was bequeathed payable a year hence, which would plainly be an interest vested presently n. · By the statute 22 & 23 Car. II. c. 10. sect. 6. In case there be no children, nor any legal representatives of them, then one moiety of the intestate's estate is to be allotted to the wife of the intestate; and the residue to be distributed to every the next of kindred of the intestate, who are in equal degree, and those who legally represent them. - By sect. 7. No representation is to be admitted among collaterals after brothers' and sisters' children o. And in case there be no wife, then all the said estate is to be distributed
m 2 P. Will. 50.
3 P. Will. 49.
See this explained, post,
to and amongst the children. And in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives, as aforesaid.
Hence we may perceive, that where the intestate leaves no child, or any legal representative of a child, that is, lineal descendant, there the wife has a moiety, or one half of his personal estate ; and if there be no wife, then all the estate is to be distributed amongst the children ; and if there be no child, then amongst the next of kindred in equal degree of or unto the intestate. But if there be a child or representative, that is, lineal descendant, then the next of kindred will be totally excluded. For if a person dies intestate, leaving a descendant of either sex, or of whatsoever degree, such descendant is to be preferred to all ascendants and collaterals; and herein agree the civil, canon, common, and statute laws P. So if there be children, or representatives of children, and no wife, we must observe what has been before said respecting children that have been advanced, bringing such advancement into hotchpot; and then how the estate is to go to the intestate's children, or if dead, to their representatives ; as here distribution must be made of the whole personal estate, in the same manner as, where there is a wife, distribution must be made of two-thirds 9.
Thus, having proceeded as far as relates to the intestate's widow and children, before we enter any farther into the statute of distributions, we may take notice of the statute of 1 Jac. II. c. 17. whereby it is enacted, that if after the death of a father, any of his children should die intestate, without wife or children, in the lifetime of the mother ; every brother and sister, and the representatives of them, shall have an equal share with her. Before this statute, if a child had died intestate, without a wife, child, or father, the mother would have been intitled to the whole personal estate r; as the father surviving is at this days; and the reason of making this statute was, because the mother might marry and carry
P 4 Burn's Eccles. Law, 348. 9 See page 90-93.
5 4 Burn's Eccles. Law, 349. s 2 P. Will, 48,