in life, are not advancements" under this statute." But a considerable sum given a son to enable him to start business is prima facie an advancement; although small or inconsiderable sums given for spending money or traveling expenses are not.10

The Doctrine of Representation. Where grandchildren succeed to the share of their parent by representation, under the Statute of Descents, they always take subject to such "advancements " as have been made to their parent by his parents or those standing to him in loco parentis.11

Posthumous Child. A child born after the making of the father's will can not recover of any brother or sister any portion of an advancement made by his father in his lifetime to such brother or sister.12

Value of the Property Advanced. The value of the property advanced shall be deemed to be that acknowledged by the child in writing, or else its value when the advancement is made.13 Estates in remainder or reversion, conveyed as an advancement, in parent's lifetime, must be deemed to be given at the time when they first vest in possession.14 Where property has no value (stocks and bonds) at the time it is given, it is of course apparent that no deduction can be made.15 Circumstances may, however, enhance the value indefinitely, and somewhat alter the rule laid so boldly down in Marsh v. Gilbert.

996, Decedent Estate Law; I Swinb. pl. 3, § 18, pl. 19; Morris v. Boroughs, 1 Atk. 403; McRea v. McRea, 3 Bradf. 199, 207; Miller v. Coudert, 36 Misc. 44; Goodeve, Pers. Prop. 375.

10 Sandford v. Sandford, 5 Lans. 480, 491; s. c., 61 Barb. 293; s. C., 4 Hun, 753; Vail v. Vail, 10 Barb. 69, 74; Kinyon v. Kinyon, 6 Misc. 584; Kintz v. Friday, 4 Dem. 540. Cf. McRea v. McRea, 2 Bradf. 199, 207. 11 Parker v. McCluer, 36 How. Pr. 301; s. c., 5 Abb. Pr. (N. S.) 97;

S. C., 3 Keyes, 318; 3 Sharswood & Budd, Lead. Cas. Real Prop. 418; Beebee v. Estabrok, 79 N. Y. 246, affg. 11 Hun, 523; Bowron v. Kent, 190 N. Y. 422.

12 Sanford v. Sanford, 61 Barb.

293.

13 § 96, Decedent Estate Law; Palmer v. Culbertson, 143 N. Y. 213. 14 Palmer v. Culbertson, 143 N. Y. 213.

15 Marsh v. Gilbert, 2 Redf. 465; Parker v. McCluer, 3 Keyes, 318, 321.

Beneficial Power. On general principles of equity, a beneficial power was always regarded as property of the donee.16 The Revised Statutes very properly provided that the grant of such a power and even a power of appointment should be deemed an "advancement," to a descendant, of course, meaning in a proper

case.17

Gift or Advancement. Whether a transaction between a parent or one in loco parentis and a child is to be treated as a gift or advance, or as an "advancement," depends wholly on the circumstances of each particular case. The law has apparently in such cases no favorite presumption which will prevail in all cases. But it raises presumptions either way, according to the facts and circumstances proven in the particular case.18

Advancements, how Proven. The declaration, oral or written, of a parent, his entries and charges in his books of account, or any explicit memorandum by him, are said to be proper evidence that payments to a child are "advances," or on a distribution" advancements," after proof that such child has received money from the parent.19 The parol admissions of the child who receives the advance are competent evidence against him to prove that the transaction was an advancement.20 The declarations of a testator are not, however, evidence in favor of the executor against children, to prove that the so-called "advancements are loans.21

Section to be Read with Others. The commentary on this section should be read in conjunction with that on sections 97 and 99 of this article.

16

Sugden on Powers, 27.

17 1 R. S. 737, § 127, now § 96, Decedent Estate Law; Sanford v. Sanford, 61 Barb. 293, 298.

18 Camp v. Camp, 18 Hun, 217; Arnold v. Haronn, 43 id. 478; Sanford v. Sanford, 61 Barb. 293; Hine v. Hine, 39 id. 507; Bell v. Champlain, 64 id. 396; McRae v. McRae, 3 Bradf. 199; Marsh v. Gilbert, 2 Redf. 465; Beebee v. Estabrook, 79 N. Y. 246, 254; Palmer v. Culbertson, 143 id. 213, 217; Ritch v. Hawx

hurst, 114 id. 512, 516; Bowron v. Kent, 190 id. 422, 432.

19 Hicks v. Gildersleeve, 4 Abb. Pr. 1; Palmer v. Culbertson, 143 N. Y. 213, 217; Parker v. McCluer, 3 Keyes, 318. Cf. Chase v. Ewing, 51 Barb. 597.

20 Palmer v. Culbertson, 143 N. Y. 213, 216; § 96, Decedent Estate Law.

21 Chase v. Ewing, 51 Barb. 597. Cf. Piper v. Barse, 2 Redf. 19; Sanford v. Sanford, 61 Barb. 293, 302; Johnson v. Cole, 178 N. Y. 364.

§ 97. How advancement adjusted. When an advancement to be adjusted consisted of real property, the adjustment must be made out of the real property descendible to the heirs. When it consisted of personal property, the adjustment must be made out of the surplus of the personal propperty to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other.

Formerly $296, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 296. How advancements adjusted. When an advancement to be adjusted consisted of real property, the adjustment must be made out of the real property descendible to the heirs. When it consisted of personal property, the adjustment must be made out of the surplus of the personal property to be distributed to the next of kin. If either species of property is insufficient to enable the adjustment to be fully made, the deficiency must be adjusted out of the other.22

Comment on this Section. The Commissioners of Statutory Revision, in their report to the Legislature, stated that section 296 of the Real Property Law of 1896 was new to that revision, and drawn to correspond with the provisions of the Code of Civil Procedure.23 The Provisions of the Code of Civil Procedure, upon the adjustment of advances,24 were taken from the Revised Statutes,25 which, in turn, was a revision of the old Statute of Distributions. The Revised Statutes made express provision for the adjustment of advances out of real estate of an intestate. It has been stated that such provision was a new departure in principle, although this may be doubted, for by custom it was long anterior to that revision, and equity exercised some sort of jurisdiction over advancements of real estate independently of statute.27

26

22 Repealed by § 130, Decedent Estate Law.

23 Note to 296, Appendix III, infra.

24 § 2733, Code Civ. Pro. Cf. 2 R. S. 98, § 79.

25 2 R. S. 96, §§ 76, 77, 78, 79. 261 R. L. 311, 313; 2 J. & V. 71, reenacting 22 & 23 Car. II, chap. 10, as explained by 29 id., chap. 31, § 25.

27 See above, p. 421, under § 96, Decedent Estate Law.

It is now very clear, under the present statute, that the section of the Code of Civil Procedure, relating to advancements of personalty, 28 and the sections relating to realty,29 are to be read together.30

Advancements, how Adjusted. Whenever "advancements" have been made, the estate of an intestate now comes into "hotchpot," ,"31 and the heir must account for the value of the real property advanced as of the time when given, unless the value be acknowledged, in writing, by him, as provided for by the prior section of this act."2

34

33

When the persons entitled to the real, and those entitled to the personal, estate are not the same, the real advances must be computed out of the real estate, and the advances of money or goods out of the personal estate. The surrogate has jurisdiction to allow the advancements out of personal estate in a decree for distribution. The adjustment may be made in an ejectment action, or in a partition suit, at least where it appears that the intestate left no personal estate.5 and even where it does not so appear,36 as the administrators are now necessary parties to a partition suit.37 So "advancements to plaintiff may be set up as an equitable defense, in an action of ejectment against the heirs of an intestate.38

Post-Testamentary Children. How far "advancements " are to be allowed in computing shares of a child born after the making of the parent's will, is considered in Sanford v. Sanford.39

Section 99, Decedent Estate Law. This section is to be read in conjunction with section 99 of the same act, as both relate to the same subject.

28 § 2733, Code Civ. Pro. a part now 99, Decedent Estate Law.

29 §§ 96, 97, Decedent Estate Law. 30 Beebee v. Estabrook, 79 N. Y. 246, affg. 11 Hun, 523.

31 As to this term, see 2 Black. Comm. 190. Cf. Terry v. Dayton, 31 Barb. at p. 523.

32 § 96, Decedent Estate Law; Parker v. McCluer, 3 Keyes, 318. Cf. Marsh v. Gilbert, 2 Redf. 465; and see under $99, Decedent Estate Law.

33 Terry v. Dayton, 31 Barb 519, 523, 524.

34 § 2733, Code Civ. Pro.; Matter of Morgan, 104 N. Y. 74.

35 Parker v. McCluer, 3 Keyes, 318; Palmer v. Culbertson, 143 N. Y. 213. 36 Hobart v. Hobart, 58 Barb. 296. 37 § 1538, Code Civ. Pro.

38 Bell v. Champlain, 64 Barb. 396. 39 4 Hun, 753, 61 Barb. 243.

§ 98. Distribution of personal property of decedent. If the deceased died intestate, the surplus of his personal property after payment of debts; and if he left a will, such surplus after the payment of debts and legacies, if not bequeathed, must be distributed to his widow, children, or next of kin, in manner following:

1. One-third part to the widow, and the residue in equal portions among the children, and such persons as legally represent the children if any of them have died before the deceased.

2. If there be no children, nor any legal representatives of them, then one-half of the whole surplus shall be allotted to the widow, and the other half distributed to the next of kin of the deceased, entitled under the provisions of this section.

3. If the deceased leaves a widow, and no descendant, parent, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus; but if there be a brother or a sister, nephew or niece, and no descendant or parent, the widow shall be entitled to one-half of the surplus as above provided, and to the whole of the residue if it does not exceed two thousand dollars; if the residue exceeds that sum, she shall receive in addition to the one-half, two thousand dollars; and the remainder shall be distributed to the brothers and sisters and their representatives.

4. If there be no widow, the whole surplus shall be distributed equally to and among the children, and such as legally represent them.

5. If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants in whatever