scendants shall not share in the estate of the intestate; but if it be less than such share, such child and his descendants shall receive so much, only, of the personal property, and inherit so much only, of the real property, of the intestate, as shall be sufficient to make all the shares of all the children in the whole property, including the advancement, equal. The value of any real or personal property so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise it must be estimated according to the worth of the property when given. Maintaining or educating a child, or giving him money without a view to a portion or settlement in life is not an advancement. An estate or interest given by a parent to a descendant by virtue of a beneficial power, or of a power in trust with a right of selection, is an advancement.70

§ 295 was formerly 1 Revised Statutes, 737, § 127, and 1 Revised Statutes, 754, 88 23, 24, 25, 26.

§ 127. Every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust with a right of selection, shall be deemed an advancement to such descendant, within the provisions of the second Chapter of this Act.71

§ 23. If any child of an intestate shall have been advanced by him, by settlement or portion of real or personal estate, or of both of them, the value thereof shall be reckoned, for the purposes of this section only, as part of the real and personal estate of such intestate, descendible to his heirs, and to be distributed to his next of kin, according to law; and if such advancement be equal or superior, to the amount of the share, which such child would be entitled to receive, of the real and personal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share, in the real and personal estate of the intestate.72

24. But if such advancement be not equal to such share, such child and his descendants shall be entitled to receive so much only, of the personal estate, and to inherit so much only, of the real estate of the intestate, as shall be sufficient to make all the shares of the children, in such real and personal estate and advancement, to be equal as near as can be estimated.73 $25. The value of any real or personal estate so advanced, shall be deemed to be that, if any, which was acknowledged by the child by an instrument in writing; otherwise such value shall be estimated, according to the worth of the property when given.74

§ 26. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement.75

70 Repealed by 8 130, Decedent Estate Law.

71 Repealed, chap. 547, Laws of 1896.

72 Repealed, chap. 547, Laws of 1896.

73 Repealed, chap. 547, Laws of 1896.

74 Repealed, chap. 547, Laws of 1896.

75 Repealed, chap. 547, Laws of 1896.

Some Account of this Enactment. The doctrine of "advancements by a parent, or person in loco parentis, sprang from! two sources," equity "76 and the "Statute of Distributions" (22 & 23 Car. II, chap. 10). The chancellor long "favoured the heir," by analogy to the like legal doctrine, and consequently deprecated double portions to younger children, because they were at the expense of the heir. In a State where real inheritances are now partible, the maxim "equality is equity" applies with greater force, and the equitable presumption, that a sum paid by a parent to a child is intended as an "advancement," or ademption, is very strong in favor of other children, equally entitled, who receive nothing.

80

The source referred to by Chancellor Kent as the sole origin of the New York statute regulating advances, viz., the English Statute of Distributions,78 was re-enacted here in the year 1774.79 It was subsequently re-embodied in the first general revision of the laws of the State, and thence continued in the Revised Statutes.81 All such provisions are now in this act.82 The Statute of Distributions had no reference to real estate,s and consequently, until the Revised Statutes, the general doctrine of "advancements," as applied to real property, could have stood only upon the general principles of equity. By the old common law this doctrine certainly had

84

76 Spence, Eq. Juris. 427. Cf. Messman v. Egenberger, 46 App. Div. 46, 49.

77 4 Kent Comm. 417, 418; Beebee v. Estabrook, 79 N. Y. 246; Terry v. Dayton, 31 Barb. 519; 88 96, 97, 98, 99, Decedent Estate Law. Cf. § 2733, Code Civ. Pro. But the custom of bringing personal estate into hotchpot is in London city older than the Statute of Distributions. Tomlins' Lyttleton, 307.

78 22 & 23 Car. II, chap. 10, explained by 29 Car. II, chap. 31, § 25; Terry v. Dayton, 31 Barb. 519, 523. 79 Laws of 1774, chap. 11.

no application to real property, except in the case of coparceners.85 The Revised Statutes first applied the principle of the old Statute of Distributions to the descent of real estates as well as to the distribution of personal estates." The present section now regulates the entire subject of advancements out of real estate.s

Construction of this Section. The term advancements" is strictly a technical one, and it is not the equivalent of "advances." $8 Advancements relate to dealings with children only, not with widows of intestates.8 Advancements relate primarily to estates of intestates, not to estates of those who die testate.89a

The sections of the old Statute of Distributions, relating to "advancements" of personal estate, and this and the subsequent section of the Decedent Estate Law, relating to "advancements" of real estate, are to be read together, being in pari materia. Where a man dies leaving a will disposing of a part only of his estate, this section has little application. It is also said, that it does not apply to partial intestacy."

Interest is not allowed, as a rule, on property or sums, treated as "advancements.'

1994

The question, whether property given to children by parents is an advancement or a gift, is a very troublesome one.95

96

Application of the Doctrine of Advancements. The doctrine of "advancements" at the present time relates to property, real and personal, given in his lifetime by a parent, or one in loco parentis, to a child, or descendant in anticipation of a share which the donee would be entitled to receive if the donor die intestate." It has no application in the division of estates of those who die testate.97 The doctrine is often confused with the rules relating to "advances" and satisfaction of legacies. To some extent such doctrines are not dissimilar in application and in results, as they all relate to the principles which guide courts in charging beneficiaries with sums or property given, or advanced, to them in the lifetime of the donor. But the doctrine of "advancements " now relates wholly to charges to be made to heirs or next of kin in cases of intestacy only."9

99

98

In England the doctrine of advancements was held to have no application to cases of partial intestacy, because the will showed an intention otherwise,1 and it has been since so held in this State."

66

legacies" correspond to advancement," but regulate testate successions. Langdon v. Astor's Exrs., 16 N. Y. 9, 33; Hine v. Hine, 39 Barb. 507. "Advancements" apply only to intestate successions. Burnham V. Comfort, 37 Hun, 216, 218, affd., 108 N. Y. 535. Cf. Matter of Merritt, 86 App. Div. 179.

94 Matter of Keenan, 15 Misc. 368, 372. Cf. Verplanck v. De Went, 10 Hun, 611; Ex parte Oakey, 1 Bradf. 281.

95 Johnson v. Cole, 178 N. Y. 364,

367.

96 Bowron v. Kent, 190 N. Y. 422, 431, 432; Kintz v. Friday, 4 Den. 540; Eisner v. Koehler, I id. 277.

97 Burnham v. Comfort, 37 Hun,

But certainly where a will only appoints executors and nothing more, this ruling ought to be now relaxed, so that it will not apply to such imperfect wills, and the statute on advancements be relevant.3 This section refers primarily, it is said, to real property situate in this State, and not to that situated elsewhere.*

Education and Maintenance of Minor Not Advancements. It being the duty of parents to maintain and educate their minor children, sums thus expended are, by this section, declared not to be "advancements." 5 Where property is given to a child by a parent, and it appears that such gift was not intended as an advancement," the intention is controlling."

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Purchase of Real Estate by Father in Child's Name. Where a father pays the consideration and takes title to real estate in a child's name, the transaction is prima facie an "advancement.” 7 But where a conveyance is made to the husband or wife of a child it is incumbent on those claiming that the transaction is an "advancement," to establish it by other evidence than the conveyance.s

Sums Advanced for Child's Portion or Settlement in Life. Sums advanced for the purpose of portioning or settling a child

3 Hays v. Hibbard, 3 Redf. 28; Estate of Quinn, 2 Law Bull. 58; Thompson v. Carmichael, 3 Sandf. Ch. 120; Terry v. Dayton, 31 Barb. 579. Cf. Camp v. Camp, 18 Hun, 217.

4 McRae v. McRae, 3 Bradf. 199. 58 96, Decedent Estate Law; Vail v. Vail, 10 Barb. 69; Arnold v. Haronn, 43 Hun, 278.

6 Matter of Morgan, 104 N. Y. 74. 7 Fowler's Real Prop. Law (3d ed.), 435; Sandford v. Sandford, 5 Lans. 486, 491; s. C., 61 Barb. 293; s. C., 4 Hun, 753; Partridge v. Ha

vens, 10 Paige, 618; Piper v. Barse, 2 Redf. 19; Palmer v. Culbertson, 143 N. Y. 213, 217; Smith, Real & Pers. Prop. 208. Cf. Smith v. Balcom, 24 App. Div. 437; Jackson v. Matsdorf, 11 Johns. 91; Proseus v. McIntyre, 5 Barb. 424; Matter of Morgan, 104 N. Y. 74; Dyer v. Dyer, 2 Cox, 92; 1 White & Tudor, Lead. Cas. in Eq. 236; Goodeve, Pers. Prop. 375.

8 Palmer v. Culbertson, 143 N. Y. 213, 217; Ex parte Oakey, I Bradf. 281. Cf. Piper v. Barse, 2 Redf. 19.