have an equal part in the distribution with the other children, without any consideration of the value of the land, which he hath by descent, or otherwise, from the intestate.

By this statute the heir at law shall not abate, in respect of the land which he hath by descent, or otherwise, from the intestate; yet if he hath had an advancement from his father in his lifetime otherwise than by land as aforesaid, he shall abate for the same in like manner as the other children. And so it seeems that coheiresses shall bring together into hotchpot such advancement (not being lands) as they shall respectively have received from their father, before

property under the statute of distributions, either in the case of an absolute or a quasi intestacy, a portion equal in amount to the stipulated sum devolves to the party claiming by the covenant, that is a satisfaction, or, more properly, a performance of the covenant; but when the portion is inferior in amount, it is considered a part performance. Blandy v. Widmore, 2 Vern. 709. Lee v. Cox, 3 Atk. 419. S. C. 1 Ves. Barret v. Beckford, 1 Ves. 519. Richardson v. Elphinstone, 2 Ves. jun. 463. Garthshore v. Chalie, 10 Ves. 1. Goldsmid v. Goldsmid, 1 Swanst. 211.-Lord Eldon, in Garthshore v. Chalie, considered that the instrument is to be construed with reference to the circumstance, that there is a claim upon the property independent of the covenant; and that where a husband covenants to leave or pay, at his death, a sum of money to a person, who, independent of that engagement, by the relation between them, and the provision of the law attaching upon it, will take a provision, the covenant is to be construed with reference to that circumstance. The cases which have established this doctrine, though they have never been in terms impugned or shaken, appear not to have met with entire approbation. But as no case on which the question of satisfaction of a covenant to provide for a wife has occurred in a case of testacy, that question still remains open; and as a legacy given by a will prima facie imports bounty, it would perhaps admit a presumption of an intention in the testator to augment the provision in the settlement, and not to satisfy or perform it. See Haynes v. Mico, 1 Bro. C. C. 129. Devese v. Pontet, 1 Cox, 188.

they shall be entitled to recover their several distributive shares, agreeable to the general purport of the act; which is evidently to promote an equality as much as may bes.

This word hotchpot is generally understood to signify mixing and blending together, and conveys much the same idea as the words collatio bonorum, which in the civil law is answerable to the word hotchpot, and signifies, that if a child advanced by the father, doth after his father's decease, challenge a child's part with the rest, he must cast in all that he had formerly received, and then take out an equal share with the others ".

In respect to borough-english lands, which by custom descend to the youngest son, as we shall again see in the ensuing chapter, it became a point upon the statute of distributions, whether the youngest son (to whom the land descended by the custom of borough-english) should abate for these lands, or should be considered as an heir at law, who by the sta tute is to have a distributive share, without any allowance for lands by descent. And it was ruled by Sir Joseph Jekyll, master of the rolls, that he should allow for these lands". Yet where a man was possessed of a personal estate, and seised of a copyhold in fee, which was in the nature of borough-english, and the question was, whether the youngest son, upon whom the copyhold descended, should have an equal share with the other children of the personal estate, exclusive of the copyhold, or only so much as with that copyhold would make his portion equal to that of the other children. By Lord Chancellor Talbot: The heir at law is the eldest son, and not the heir in borough-english; and the exception in the statute extends only to the eldest son. Yet nevertheless the youngest son, who is heir in borough-english, shall not bring the borough-english estate into hotchpot, there being no law to oblige him to do this, but only this statute, and there are no words in the statute that require it:

$ 4 Burn's Eccles. Law, 332. 2 Black. Com. 190.

" Jac. Dict. tit. Hotchpot, 10th edit. v Str. 935.

for the statute speaketh only of such estate as a child hath by settlement, or by advancement of the intestate in his lifetime. And it was decreed that the youngest son should have an equal share with the other children, without regard to the value of the borough-english estate. And the former case coming after this before the Lord Chancellor Talbot, he reversed the decree of the master of the rolls, and decreed agreeably to this latter case *.

In respect to what shall be an advancement, so as to come within the meaning of the statute, we may observe, it hath been determined, that small inconsiderable sums, occasionally given to a child, cannot be deemed an advancement or part thereof. Thus, maintenance money, or allowance made by the father to his son at the university, or in travelling or the like, is not to be taken as any part of his advancement, this being only his education; and it would create charge and uncertainty to enquire minutely into such matters. So, putting out a child apprentice, is no part of his advancement; for it is only procuring the master to keep him seven years instead of the parent. But the father's buying an office for the son, though but at will, as a gentleman pensioner's place, or a commission in the army, these are advancements pro tanto, that is, for so muchy. provision made by a marriage settlement, although it is in the nature of a purchase, is such an advancement as that a child claiming a distributive share, shall first bring the said advancement into hotchpot. As where the father, on his son's marriage, covenanted, in case of a second marriage, to pay the first son by the first wife 500l. There was a son, and several other children of the first marriage. The father of these children died intestate; and by the court it was agreed, that the heir must bring the 500l. into hotchpot, although in nature of a purchaser under a marriage settle

x Cas. Talb. 276. y 3 P. Will. 317.

z Purchase means any method of acquiring an estate other than by descent. 1 Black. Com. 214.

And a

And where a person takes any thing from an ancestor or others, by deed, will, or gift, and not as heir at law, this is a purchase. 2 Lill. Abr.

497.

ment a. So where a man on his marriage entered into articles, in consideration of the marriage, and of 4000l. portion, to settle an estate to raise portions for daughters, in case there were no sons; that is to say, if but one daughter, the sum of 5000%.; if two or more, then the sum of 6000l. equally amongst them, to be paid at their respective ages of 18 years, or days of marriage, which should first happen; and 80%. a year maintenance in the meantime to each daughter. The marriage took effect; and they had issue one daughter only, and no son. Then the wife dies. Afterwards the man marries a second wife, and had by her a son and a daughter, and died intestate, leaving a personal estate to the amount of 20,000. The daughter by his first wife, at that time was about 12 years of age; and some time after married one Mr. Edwards; and they brought their bill, to have an account of the personal estate of the wife's father, and their distributive share thereof. And the only question was, whether the 5000%. should not be looked upon to be so far an advancement of the plaintiff, the wife of Mr. Edwards, that if she would have any farther share of her father's personal estate, they must bring this 5000l. into hotchpot. And the court, consisting of King lord chancellor, assisted by Raymond chief justice, and the master of the rolls, and Price and Fortescue justices, were all clear of opinion, that this was an advancement by the father in his lifetime, within the meaning of the statute, though contingent and future; so that she could not have that and her distributive share likewise. And accordingly the decree was pronounced.

If the father settles a rent out of his lands upon a younger child, this is an advancement; so likewise if he by deed settle an annuity upon a child, to commence after his death, this is an advancement for so much (3): and by the same

a 2 Vern. 638.

b Edwards and Freeman. 1 Abr. Eq. Cas. 249.

(3) The value of an annuity when brought into hotchpot is the amount of what it was worth at the time it was granted 8 Ves. 63.

reason, a reversion settled on a child as it may be valued, is an advancement also c. And if a child who has received any advancement from his father, shall die in his father's lifetime, leaving children, such children shall not be admitted to their father's distributive share, without bringing their father's advancement into hotchpot; as where a father had several children, and in his lifetime advanced one of them. The child, thus advanced in part, died in his father's lifetime, leaving issue. Afterwards the father died intestate, possessed of a considerable personal estate. It was ruled,

56.

that the issue of the dead child must bring into hotchpot what their father received in part of advancement, as he, if living, must have done; as that the issue stands in the place and stead of the father, claims under him, and cannot be in a better condition than the father, if living, would have been, and had claimed his distributive shared.. A child, partly advanced, shall bring in his advancement only amongst the other children; so that the wife shall have no advantage of ite.- It is said that whatever a child receives out of the mother's estate should not be brought into hotchpot. As in the case of Holt and Frederick, 2 Peere Williams, Martha Frederick, who married one Holt and survived him, had three children, two sons and a daughter, and having out of her own estate given 10000. to her daughter in marriage, died intestate, leaving those three children; and the question was, whether the daughter who had received this 1000. from her mother, ought to bring it into hotchpot, before she should receive any farther share of her mother's personal estate. The lord chancellor King said, It weighed with him, that the act of distribution was grounded upon the custom of London, which never affected a widow's personal estate; and that the act seems to include those within the clause of hotchpot, who are capable of having a wife as well as children, which must be husbands only. And so in this case (without much debate) his lordship ruled, that the

2 P. Will. 141. 442. d2 P. Will. 560.

• 4 Burn's Eccles. Law, 339.