real property of the intestate to descend to his heirs. Where there is a surplus of personal property to be distributed, and the advancement consisted of personal property, or where a deficiency in the adjustment of an advancement of real property is chargeable on personal property, the decree for distribution, in the surrogate's court, must adjust all the advancements which have not been previously adjusted by the judgment of a court of competent jurisdiction. For that purpose, if any person to be affected by the decree, is not a party to the proceeding, the surrogate must cause him to be brought in by a supplemental citation.41

42

46

Comment. The doctrines of advancement, as it has been stated before, spring from two sources, equity and the old Statute of Distributions.43 The Statute of Distributions had no reference. to real estates except in the case of coparceners, but real estates, on a partition between coparceners, were brought into "hotchpot long before the Statute of Distributions. When the revisers of the Revised Statutes came to make their revision of the statutes, they placed the provisions concerning advancements of the then existing Statute of Distributions 45 immediately after the sections of their revision relative to distribution. This completed the Statute of Distributions. But the revisers also introduced a similar provision in the article on the descent of real property." Thus there were, in the Revised Statutes, two sets of statutory provisions relating to advancements. In the latest revision of the statutes of the State (and by this is meant the Consolidated Laws of 1909) these dual provisions are still preserved, although one set might very well have been dispensed with under the present consolidated form of the law.48 In any event all such provisions last cited are in pari materia, and are to be read together, if intestate's estate comprises both real and personal property."

41 Repealed, except last two sections, by § 130, Decedent Estate Law. The two final sentences remain extant and in force, § 2733, Code Civ. Proc.

42 Under 96, Decedent Estate Law.

43 22 and 23 Car. II, chap. 10; see p. 436, supra.

44 Litt. §§ 266, 267; Pratt v. Pratt, Fitzgib. 284; 2 Black. Comm. 190; Tomlin's Lyttleton, 307.

45 1 R. L. 313, § 16.

46 2 R. S. 97, §§ 76, 77.

47 1 R. S. 754, §§ 23, 24, 25, 26. See text above under § 96, Decedent Estate Law.

48 §§ 96, 97, 98, 99, Decedent Estate Law, and § 2733, Code Civ. Pro.

49 Beebe v. Estabrook, 79 N. Y. 246, affg. 11 Hun, 523; and see text under §§ 96 and 97, supra.

66

History of the Rule Stated in this Section. The rule originally stated in the Statute of Distributions to the effect, that advancements made to those entitled to distribution should be brought into "hotchpot," or in other words should be considered in the computation on a final division,50 is conceded to be a very ancient provision of law. It is in some way connected with the ancient custom of bringing into "hotchpot" lands divisible among coparceners.51 Hotchpot," which prevailed before the Statute of Distributions in London, York, and some other boroughs, on the division of personalty of an intestate, is indirectly traced to "Collatio bonorum" of the Civilians.52 That there is some indirect connection between the Roman "Collatio bonorum" and the English "Hotchpot" is more than likely.5 This opinion is not a novelty; the notes to Coke on Littleton seem to concede the accuracy of Coke's own assertion, that "hotchpot" is what the Civilians call "collatio bonorum.” 54

In the Roman or civil law " collatio was in some way connected with legitim, or the portions ("legitima portio") which children (or even brothers and sisters) could demand as of right from the estate of parents or of each other, on testate or intestate successions. Gifts made in satisfaction of legitim were considered for the purpose of "hotchpot" or "collatio.55 Justinian enacted, that whatever could be reckoned for the purposes of legitim should be brought into "hotchpot." 50 In like manner daughters were required to bring into "hotchpot" their doweries.57 Such provisions were certainly founded on the highest equity, as equality of division of a family estate is always agreeable to equity.

The common law relating to "hotchpot," or the bringing of advances into divisions of estates among coparceners, certainly pre

50 22 & 23 Car. II, chap. 10, supra, P. 436.

51 Litt. 88 266, 267; 2 Black. Comm. 190.

52 Litt. §§ 266, 267, 268; Co. Inst. 176b; 2 Black. Comm. 516; Tomlins' Lyttleton, 307; Tomlins' Law Dict. titles, "Hotchpot," "London ecutor"; Swinb. pt. III, § 18; Terry v. Dayton, 31 Barb. 519, 523.

"Ex

53 Scrutton, "Roman Law and Law of England" 146, 147; 2 Black. Comm. 517; I Essays in AngloAmerican Legal Hist. 210.

54 See 17th ed. Co. on Litt. 177a. Cf. Sherwood v. Wooster, 11 Paige, 441; Kintz v. Friday, 4 Dem. 540. 55 D. 5, 2. 25 pr. 56 C. 6, 20, 20 pr. 57 C. 6, 20, 3.

So the like provi

sents features common to collatio bonorum.58 sion of the Statute of Distributions (although probably founded directly on ancient customs of England requiring children to bring into "hotchpot" advances made to them by the father in his lifetime) resemble collatio bonorum sufficiently to denote a common origin. The provisions of the Statute of Distributions, relative to the hotchpot of advancements, have been incorporated in that statute ever since its first re-enactment in New York in the manner narrated in these pages. A similar provision is now continued, really as part of the present Statute of Distributions, in this section of this act, and by reason thereof a child of an intestate who has received an advancement equal to his distributive share is not entitled to receive more on a distribution by an administrator of intestate.62

61

60

Construction of this Section. This section has been held to have no application to cases of partial intestacy, as the existence of a will is presumed to disclose an intention on the part of testator that advancements should not be deducted or considered on the division of the donor's estate. But such a presumption certainly does not appear to be controlling in those frequent cases where a testator simply appoints executors, and makes no division of his property, leaving that to be distributed according to law. Yet it is held the other way."

The statutory provisions concerning advancements have, however, no reference to wills, or to the satisfaction of devises or ademption of legacies contained therein.65

58 Litt. §§ 266, 267; 2 Black. Comm. 190.

59 22 & 23 Car. II, chap. 10, supra, P. 436.

60 Supra, pp. 443-445.

61 § 99, Decedent Estate Law; Terry v. Dayton, 31 Barb. 519, 523. 62 Parker v. McClure, 3 Keyes, 318. 63 Thomson v. Carmichael, 3 Sandf. Ch. 120; Arnold v. Haronn, 43 Hun,

278; Bowron v. Kent, 190 N. Y. 422, 432; Clark v. Kingsley, 37 Hun, 246; and see above under § 96, pp. 419428, supra.

64 Camp v. Camp, 18 Hun, 217, revg. 2 Redf. 141. Cf. Alexander v. Alexander, I St. Rep. 508. See PP. 422-424, supra.

65 Langdon v. Astor's Executors, 16 N. Y. 9, 50.

The statute relating to advancements, unlike the original Statute of Distributions, applies to estates of intestate mothers as well as to those of intestate fathers.66

67

68

The sections of this act relating to advancements made out of real property, and those relating to the advancements made out of personal estate, are in pari materia and to be read together.69 The directions of the present statute for adjusting advances are now more complete than was the case before the Revised Statutes.70

What is "Advancement?" An "advancement" is something taken out of an estate of an intestate, in his lifetime, and given to a child (or to one ultimately entitled by law to share in the distribution of such intestate's estate, such as a grandchild1); when it is so given under circumstances which indicate that equitably the same should be taken into account on a final distribution of such estate. What these circumstances are, is indicated in both the statute itself and many adjudications of authority. Whether or not gifts made in intestate donor's lifetime are to be treated as advancements in the division of his estate, is always a matter of his intention. Sometimes, therefore, the ante-mortem transaction between a parent and child may be a gift,74 or a loan,75 and at others 1976 advancement." It is important for the lawyer to deter

an

66

73

66 Kintz v. Friday, 5 Dem. 540.

67 §§ 96, 97, Decedent Estate Law. 68 § 99, Decedent Estate Law; $ 2733, Code Civ. Pro.

69 Beebe v. Estabrook, 79 N. Y. 246. Cf. Thompson v. Carmichael, 3 Sandf. Ch. 120; Terry v. Dayton, 31 Barb. 519.

70 Terry v. Dayton, 31 Barb. at p. 523.

71 Beebe v. Estabrook, 11 Hun, 523, affd., 79 N. Y. 246; Matter of Harvey, 3 Redf. 214, and see above under § 96, "advance," not an "advancement."

72 $ 99, Decedent Estate Law; Terry v. Dayton, 31 Barb. 519;

72

Chace v. Ewing, 51 id. 597; Alexander v. Alexander, 1 St. Rep. 508; Matter of Morgan, 104 N. Y. 74; Johnson v. Cole, 178 id. 364, 367; Kintz v. Friday, 4 Dem. 540; Bowron v. Kent, 190 N. Y. 422, 431, 432; and see under § 96, supra, p. 422.

73 Alexander v. Alexander, 1 St. Rep. 508; Hine v. Hine, 39 Barb. 507; Matter of Morgan, 104 N. Y. 74; Arnold v. Haronn, 43 Hun, 278.

74 Matter of Morgan, 104 N. Y. 74. 75 Bruce v. Griscom, 9 Hun, 280, affd., 70 N. Y. 612.

76 See above under § 96 and McRea v. McRea, 3 Bradf. 199; Sanford v. Sanford, 61 Barb. 293.

Imine what facts are evidential of the testator's intent, as intent is controlling on questions of advancement."

78

While those who take by representation take subject to advancements to those they represent, there is a difference between an advance to a grandchild made in his father's lifetime and one made to such grandchild after his father's death. In the former case the advance is a gift, and it is not treated as an "advancement " to the grandchild, even if his father predecease him. But in the latter case it may be an "advancement," " provided, there is some evidence of intention to that end.80

There is nothing in the statute which prevents heirs or next of kin from agreeing among themselves as to what shall be regarded as advancements and the value thereof.81 The law always favors and enforces family agreements of this kind.82

83

How Advancements Adjusted. When "advancements have been made to children or descendants such advancements must be brought into "hotchpot" among the other children, provided they are partial and not full advancements; that is to say, if they are not fully equal to the distributive share which the child or descendant is entitled to on final distribution.84 If the child or descendant is fully advanced, the probable effect is to remove that child out of the reckoning. At least, such was the rule under the custom which preceded the statutes and it seems to be enforced by the provisions of the existing statute.86

Under the English statute, a child advanced in part brought in his advancement only as to the other children, for no benefit ac

77 See above under this section and Dougherty v. Dougherty, 7 Alb. L. J. 347.

78 Supra, p. 425.

79 Stevenson v. Martin, II Bush. 485, 493; Beebe v. Estabrook, 79 N. Y. 246.

80 Jackson v. Matsdorf, 11 Johns. 91; Alexander v. Alexander, I St. Rep. 508; Matter of Morgan, 104 N. Y. 74.

81 Hoerle v. Hoerle, 94 App. Div. 615.

82 Pomeroy v. Eq. Juris. § 850.

83 McRae v. McRae, 3 Bradf. 199, 207; Beebe v. Estabrook, 79 N. Y. 246. Cf. Terry v. Dayton, 31 Barb. at p. 523.

84 Cf. Williams, Executors, 1102, on the custom.

85 Cf. Williams, Executors, 1102, on the custom.

86 See §§ 96, 99, Decedent Estate Law; Terry v. Dayton, 31 Barb. at p. 523; Parker v. McCluer, 3 Keyes, 318.