intestate estate. If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision should have been directly the reverse, on the plain principle, that the child is innocent, and the mother guilty, of the disgrace attached to its birth. The parents are chargeable with the disabilities and discredit which they communicate to their offspring; and the doctrine has pretty extensively prevailed, that the law ought not to confer upon such parents, by its active assistance, the benefits of their child's estate. The claim for the interposition of the law in favour of the mother and her kindred, and espe cially in favour of the putative father, is held, by high authority, to be destitute of any foundation in public policy.a (4.) There is generally, in the statute laws of the several states, a provision relative to real and personal estates, similar to that which exists in the English statute of distribution, concerning an advancement to a child. If any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of Isuch child which would be due from the real and personal estate, if no such advancement had been made, then such child, and his descendants, are excluded from any share in the real or personal estate of the intestate. But if such advancement be not equal, then the child, and his descendants, are entitled to receive, from the real and personal estate, sufficient to make up the deficiency, and no more. The maintenance and education of a child, or the gift of a See the remarks of Ch. J. Parker, in 4 Pick. Rep. 95. Lord Ch. B. Gilbert places the exclusion of bastards from the feudal succession, on high and lofty principles of honour and morality. "The lords would not be served by any persons that had that stain on their legitimation, nor suffer such immoralities in their several clans." Gilbert on Tenures, 17. money, without a view to a portion, or settlement in life. is not deemed an advancement. This is the provision as declared in the New-York Revised Statutes, and it agrees, in substance, with that in the statute laws of the other states. The basis of the whole, is the provision in the statute of distribution of 22 and 23 Charles II., though there are a few shades of difference in the local regulations on the subject. The statutes in Maine and Massachusetts, have mentioned the requisite evidence of the advancement, and it is to consist of a declaration to that effect in the gift or grant of the parent, or of a charge in writing to that effect by the intestate, or of an acknowledgment in writing by the child. The provision in those states, and in Kentucky, applies equally to grandchildren, whereas the language of the provision is, generally, in the other states, like that in the statute of distribution, confined to an advancement to the child of the parent. It is declared in New-York, that every estate lor 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. In NewJersey, the statute uses the word issue, which is a word of more extensive import than the word child; though children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case requires it. It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending, by construction, and equity, the meaning of the word child, so as to exclude a grandchild who should come unreasonably to a Vol. i. 754. sec. 23, 24, 25, 26. Ibid. vol. ii. 97. sec. 76, 77, 78, 79. b N. Y. Revised Statutes, vol. i. 737. sec. 127. c Wyth v. Blackman, 1 Vesey's Rep. 196. Royle v. Hamilton, 4 Vesey's Rep. 437. claim his distributive share, when he had already been sufficiently settled by advancement. In some of the states, as in Virginia, Kentucky, and Missouri, there is a special provision, that the child who has received his advancement in real or personal estate, may elect to throw the amount of the advancement into the common stock, and take his distributive share; and this is technically said to be bringing the advancement into hotchpot. I do not find this privilege conceded by the laws of the other states, to the child who has been advanced, and there is nothing which would appear to render the privilege of any consequence. (5.) An estate by descent renders the heir liable for the debts of his ancestor, to the value of the property descendod. By the hard and unjust rule of the common law, land descended, or devised, was not liable to simple contract debts of the ancestor or testator; nor was the heir bound even by a specialty, unless he was expressly named. But, in New-York, the rule has been altered, and by a provision in the act of 1786, and continued in the subsequent revisions, heirs are rendered liable for the debts of the ancestor by simple contract, as well as by specialty, and whether specially named or not, to the extent of the assets descended, on condition that the personal estate of the ancestor shall be insufficient, and shall have been previously exhausted. This condition does not apply, when the debt is, by the will of the ancestor, charged expressly and exclusively upon the real estate descended to the heirs, or directed to be paid out of the real estate descended, before resorting to the personal estate. It is further provided, that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall descend to the a 3 Blacks. Com. 430. Co. Litt. 209. a. h N. Y. Revised Statutes, vol. ii. 452. sec. 32, 33, 34, 35. heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate; without resorting to the executor or administrator, unless there be an express direction in the will to the contrary." The general rule of the English law is, that the personal estate is the primary fund for the discharge of the debts, and is to be first applied, even to the payment of debts with which the real estate is charged by mortgage, for the mortgage is understood to be merely a collateral security for the personal obligation. The order of marshalling assets towards the payment of debts is, to apply, 1. The general personal estate; 2. Estates specifically devised for the payment of debts; 3. Estates descended; 4. E tates specifically devised, though generally charged with the payment of debts. It requires express words, or the manifest intent of a testator, to disturb this order. On the other hand, there is a material distinction between debts originally contracted by the testator, or intestate, and those contracted by another; and, therefore, if a person purchases an estate subject to a mortgage, and dies, his personal estate, as between him and his personal representatives, shall not be applied to the exoneration of the land, unless there be strong and decided proof, that in taking the incumbered estate, he meant to take upon himself the mortgage debt as a personal debt of his own. The last provision abovementioned, from the New-York Revised Statutes, was an alteration of the antecedent rule, and a N. Y. Revised Statutes, vol. i. 749. sec. 4. b Harg. & Butler's Co. Lilt. 208. b. note 106. Howel v. Price. 1 P. Wms. 291. and the learned note of Mr. Cox. 3 Johns, Ch. Rep. 257. 9 Serg. & Rawle, 73. c Stephenson v. Heathcote, 1 Eden, 38. 1 Cox's Cas. 1. Webb v. Jones, ibid. 245. Lord Inchiquin v. French, rivale, 193. Livingston v. Newkirk, 3 Johns. Ch. Rep. 312. d Cumberland v. Cumberland, 3 Johns. Ch. Rep. 229. makes a mortgage debt fall primarily upon the real es tate. I assume, that the rule prevails, generally, in these United States, that the lands descended to the heirs are liable to the debts of the ancestor equally, in all cases, with the personal estate. In Massachusetts, the personal estate is first to be applied, and the land resorted to upon a deficiency of personal assets. This is probably the case in other states, in which the real and personal estate is placed as assets under the control of the personal representatives. In Pennsylvania, the lands are treated as personal assets, and the creditor who sues the executor, may sell the land in the hands of the heirs, without making them parties. This is complained of by high authority in that state, as contrary to the plainest principles of justice. a It is not easy to perceive the necessity or policy of thus interfering with, and reversing the rule of equity as to mortgage debts, which had been known and settled for ages; and especially as the Revised Statutes, as to all other debts, retain and enforce the rule that the personal estate is the primary fund. The symmetry of the law, on this point, is thus destroyed; and a reason suggested by the revisers, in their report of the bill, was, that the existing "rule of law was unknown to the generality of our citizens." b 3 Mass. Rep. 527. 536. 4 Ibid. 358. c Gibson, Ch. J., 13 Serg. & Rawle, 14. |