This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
An advancement is a giving, by anticipation, to a child or other relative, of a part or the whole of what the donee would receive on the death of the donor intestate, with the result, generally speaking, that the amount thereof is deducted in determining the share of such donee after the donee's death. A substantially similar doctrine was recognized at common law, in the case of land given to one of several co-heiresses to hold in frank marriage, she being excluded from any share in the ancestor's land unless she brought the land given her into a common fund for equal distribution, this being known as "hotchpot."93
C. (Pa.) 297; Hole v. Robbins, 53 Wis. 514, 10 N. W. 617.
91. See Swick v. Coleman, 2l8 111. 33, 75 N. E. 807; Lanferman v. Van Zile, 150 Ky. 751, 150 S. W. 1008; Hole v. Robbins, 53 Wis. 514, 10 N. W. 617; Humphries v. Davis, 100 Ind. 274.
In Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, Paul v. Davis, 100 Ind. 422, overruling Barnhizel v. Ferrell, 47 Ind. 335, it was decided that property which descended to the adopted child from the adoptive parent descended to the latter's kindred, the question of the descent of property otherwise acquired being expressly left undecided.
92. Woodward's Appeal, 81 Conn 152, 70 Atl. 453; Van
Matre v. Sankey, 148 111. 536, 23 L. R. A. 665, 39 Am. St. Rep. 196. 36 N. E. C28; Schick v. Howe, 137 Iowa, 249, 14 L. R. A. (N. S.) 980, 114 N. W. 916; Gray v. Holmes, 57 Kan. 217, 33 L. R. A. 207, 45 Pac. 596; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Fisher v. Browning, 107 Miss. 729, Ann. Cas. 1917C, 466, 66 So. 132; Anderson v. French, 77 N. H. 509, 93 Atl. 1042, L. R. A. 1916 A, 660; Finley v. Brown, 122 Tenn. 316, 25 L. R. A. (N. S.) 1285, 123 S. W. 359. See Calhoun v. Bryant, 28 S. Dak. 266, 133 N. W. 266. Contra, Brown v. Fin-ley, 157 Ala. 424, 21 L. R. A. N. S. 679, 131 Am. St. Rep. 68, 47 So. 577.
93. 2 Blackst. Comm. 190. As
Frank-marriage was, however, practically obsolete even in Blackstone's time,94 and the modern law of advancements is based exclusively on statutes, which differ somewhat in different states.95
In most states the statute applies in terms to a gift to any descendant of the intestate, but a statute applying in terms to a gift to a child only has been construed as extending to a gift to another descendant.96
The statutes of many states provide that if the person to whom the advancement was made dies before the intestate, his representees shall stand in his place as regards the advancement, that is, will take subject to the deduction thereof as the ancestor would have done.97 But even apart from an express provision to that effect, it seems, persons taking by right of representation the share of him to whom the advancement was made, take subject to such deduction.98 Persons, on the other hand, who take in their own right and not by right of representation, take free from any claim on account of advancements made to their parent.99 to local customs of charging advancements in connection with the distribution of personalty, see 2.Blackst. Comm. 517; Holt v. Frederick, 2 P. Wms. 356.
94. 2 Blackst. Comm. 115.
95. 1 Stimson's Am. St. Law, Sec.Sec. 31G0-3168; 2 Woerner, Administration, Sec. 559.
96. In re Williams. 62 Mo. App. 339; Johnson v. Antriken, 205 Mo. 244, 103 S. W. 936; Storey's Appeal, 83 Pa. St. 89; A gift to a grandchild made while the grandchild's parent was alive has been regarded as not constituting an advancement to the parent. Stevenson v. Martin, 11 Bush (Ky.) 485.
97. 1 Stimson's Am. St. Law, Sec. 3164. See Simpson v. Simpson,
Intestate's property, bring the amount of the advancement into "notch pot," that is, he must contribute to the common fund the amount of his advancement, and shall then receive therefrom the same amount as if the advancement had not been made.4
114 111. 603, 2 N. E. 603, 4 N. E. 137, 7 N. E. 287; Bramford v. Crawford, 51 Ga. 20; Coffman v. Coffman, 41 W. Va. 8, 23 S. E. 523.
98. Simpson v. Simpson, 114 111. 603, 2 N. E. 603; Barber v. Taylor, 9 Dana (Ky.) 84; Smith v. Smith, 59 Me. 214; Williams' Estate, 62 Mo. App. 339; Headen v. Headen, 42 N. C. 159; Quarles v. Quarles, 4 Mass. 680; Parsons v. Parsons, 52 Ohio St. 470; Per son's Appeal, 74 Pa. St. 121; Mc Lure v. Steel. 14 Rich. Eq. 105.
99. Brown v. Taylor. 62 Ind. 295; Skinner v. Wynne, 2 Jones Eq. 41: Calhoun v Cosgrove, 33 La. Ann. 1001; Person's Apeal, 74 Pa. St. L21.
The question whether a gift to a possible heir or distributee is to be regarded as an advancement is a question as to the intention of the donor, and, apart from statute, a gift to an adult child, if of substantial value, is usually presumed to be an advancement.1 In a number of states there are statutory provisions to the effect that the gift, in order to constitute an advancement, must be acknowledged in writing as an advancement by the donee, or must be expressed in the gift or grant to be made as such, or must be so charged by the donor in writing.2 In some states it is provided that maintaining, educating, or giving money to a minor child, without any view to a portion or settlement for life, is not an advancement.3
The statute in most states declares that, if the amount of the advancement exceeds the share to which the donee would be entitled on the death of the donor intestate, though he need refund no part of what he has received, he can receive nothing further from the intestate's estate. In case the advancement is not equal to the share to which he is entitled, the donee, in a number of states, is given so much of the intestate's property as will make all the shares equal; and in some states it is provided that the advancement is to be charged against the share to which the donee is entitled in either the real or the personal property, according as the advancement may have been the one or the other, and that, if the advancement should exceed the amount to which he may be entitled out of either class of property, his share in the other class shall be proportionally reduced. In some states it is provided in terms that the donee must, in order to obtain his proper share in the
1. 2 Woerner, Administration, Sec. 555; Boyer v. Boyer, 62 Ind. App. 73, 111 N. E. 952; Calhoun v. Taylor, 178 Iowa, 56, 159 N. W. 600; Lynch v. Culver, 260 Mo. 495. 168 S. W. 1138.
2. 1 Stimson Am. St. Law, Sec. 3162.
3. 1 Stimson, Am. St. Law, Sec. 3161. This appears to be so apart from such an express provision. 2 Woerner, Administration, Sec. 555.
The statutes in regard to advancements have no application, as a general rule, in the case of a partial intestacy, since it is presumed that the will would have mentioned any gifts which it was intended should be regarded as advancements.5