
    Brunson vs. Brunson.
    Gift. Inter vivos and mortis causa of securities jar money. Choses in action may be validly given mortis causa; and a fortiori, they are the subject of a valid . donationmíer vivos. And a mere delivery accompanied by words of donatio* will be a good gift of them, and operate to vest in the donee a property in the money secured by them. ■
    
      SUCCESSION — to intestate. Whether Widow can claim collationof advancements. Under the Hoi’fh Carolina act of 1784, c. 22, § 8, the widow of an' intestate is not entitled to have advancements to his children in his lifetime collated, so as .to form, of the advancements and the residue on hands at the death, a mass to be divided between fier and the children. She is only entitled to a share of what remains after deducting' the advancements.
    Doctor Asahel Brunson of Montgomery county was seized and possessed of a large real and personal estate. He fiad four sons, Jesse A., Robert, Ashbell and Asahel, to whom he made, from time to time, considerable advancements. As-ahel, the last mentioned, died leaving three children, Joseph, Penelope and Asahel. The surviving brothers became embarrassed in their circumstances; and in order to relieve them, Doctor Brunson in 1826, placed in the hands of one of them, Jesse A. Brunson, to be collected by him and applied to that 'purpose, several securities for money, consisting of two judgment's against Willie Blount, and divers notes upon other persons, amounting exclusive of interest, to a little more than 12,000 dollars. Jesse A. Brunson proceeded to collect these demands, and in doing so, caused the judgments against Blount to be levied upon land in Montgomery and Robertson counties, which he purchased himself at the sheriff’s sale. But before the collection .of these demands had been completed, or the money paid over to the. brothers, Doctor Brunson, on the 17th of November, 1827, died intestate, and Jesse A. Brunson was appointed his administrator in January 1828. He left a widow, Penelope. In February following, Ashbell Brunson died intestate, leaving a widow, Elizabeth, and three infant children, Isaac, Elizabeth and Penelope, entitled to his share, if any, of Doctor Brun-son’s estate. Isaac Dortch was appointed administrator of Ashbell Brunson in April 1828.
    On the 11th of November 1829, Dortch filed his bill in •the chancery court at Charlotte against Jesse A. and Robert Brunson, claiming an equal share in three parts to be divided of the securities placed in Jesse A. Brunson’s hands to be collected as above stated, charging that Doctor Brunson designed to give those securities to his surviving sons.
    Jesse A. Brunson had not returned those securities in his inventory of Doctor Brunson’s estate; but on filing his answer to Dortch’s bill, he took the ground that they actually constituted a part of Doctor Brunson’s estate and had not been given to his sons; and insisted that Dortch as administrator of Ashbell, was not entitled to ány part of them, nor to any other portion of Doctor Brunson’s estate without collating the advancements made to Ashbell. And he stated the transaction of the deposit of the securities in his hands by Doctor Brunson in the following terms:
    That Doctor Brunson placed the claims in his hands, and directed him to collect them, and pay himself for his trouble and the expense of collecting them, observing — “You may retain one third, and divide the balance between Robert and Ashbell, and it will enable you to pay your debts;” that upon this he requested his father to give him his part of the notes, but Doctor Brunson replied that he prefered that Jesse should take the notes and collect them, and added — “If you do not like to.pay the balance to Robert and Ashbell, after paying one third, pay it to me, and I’ll give it to them.” And he continued, exercise your own discretion in collecting the notes; but don’t throw good money after bad, for some of the claims are not good. There’s Shelby’s note, — he’s insolvent now, but he’s young, and by holding it up, he may become good.” As an evidence that the transaction was no gift, he further stated in his answer, that about a week after the delivery of the securities to him, Doctor Brunson directed him to exchange some of them with Cave Johnson for claims on Stewart county, which was done in part. And the answer continues — ‘‘Respondent never received the claims with any kind of instructions or understanding that his father intended to give up his control over them or his ownership. It was, according to his understanding, more a declaration of what he intended or wished to be done than any thing else. He made no assignment at all, and the business was conducted in his name.”
    On the 11th of April 1830, Jesse A. Brunson, before filing his answer to Dortch’s bill, filed his own bill in the chancery court at Charlotte, against the children of Asahel Brunson the younger, and the widow and children of Ashbell Brunson and his administrator, Dortch, and against his brother Robert; praying that they might account with him as administrator of Doctor Brunson’s estate, collate their advancements, &c. &c.
    Answers were filed to this bill; and in that of Ashbell Brunson’s representatives, they declined bringing their advancements into hotchpot, but claimed one third of the securities placed by Doctor Brunson in Jesse A. Brunson’s hands, as above stated.
    In March 1832, Penelope, the widow of Doctor Brunson ,died intestate and Jesse A. Brunson was appointed her administrator in April following, whereupon he filed a supplemental bill to have her estate administered in the suits already ¡instituted, which the court now order to be heard together.
    Upon the supplemental bill, it became a question whether Doctor Brunson’s widow, Penelope, was- entitled, in the distribution of her husband’s personalty, to share equally with the three distributees who collated their advancements;; or was only entitled to a fifth of the estate exclusive of all advancements as well of those which were collated, as of that which was not?
    For if she was entitled to a fourth, then Ashbell Brunson’s distributees, who refused to'collate the advancements made to Jiipi, would be entitled to the eighth of the whole of Doctor Brunson’s estate in addition to their advancements, instead of one twentieth of what remained after deducting the advancements.
    Testimony was taken to show that the deposite of the securities in the hands of Jesse A. Brunson had been treated both by him and his father as a gift; but as the court were satisfied from the statements of J. A. Brunson’s answer, which are recited above, that this was the nature of the transaction, it is unnecessary to detail the testimony upon the point.
    In 1834 Jesse A. Brunson died intestate, and his widow Louisa, was appointed his administrator as well as guardian of his children; and the causes having been revived, were heard at October term, 1838, by his Honor . chancellor Bhown, who being of opinion that the deposite of the securities in the hands of' Jesse A. Brunson in 1826, was a gift of these securities to the three surviving brothers; and being also of opinion that the widow of Doctor Brunson was only entitled to. one fifth of the remainder of his estate after deducting the advancements, decreed upon both points accordingly.
    From this decree the heirs of Asahel Brunson the younger, appealed in error.
    F. B. Fogg, with whom was Meigs, for the appellants,
    contended as to the deposite of the securities in the hands of Jesse A. Brunson, that it was not a gift, and he said'
    That in gifts causa mortis, the donor intends to give the money, not the note, therefore delivering the note is not sufficient, but it is said a delivery of a bond as donatio causa mor-tis is good. 2. Kent’s Commentaries 352, 4. These gifts are not to be encouraged. A chose in action cannot be the subject of such a gift. Tate vs Tate, 2 Vesey Jr. 116; 3 Peere Williams 356; 12 Vesey 39; 1 Maddox Reports 176; 7 John 52; 1 Swanston 486; 1 P. Wms. 104; 1 Vez.. Jr. 548; 2 Ves. Sen. 442; 7 Johnson 224; 1 and 2 Paige’s Reports.
    “A gift at law or in equity, says the Master of the Rolls, in 1 Swanston 491, supposes some aet to pass the property: in donotions inter vivor if the subject is capable of delivery; if a chose in action, a release or equivalent instrument; in either case, a transfer of the property, is required. An intention to give, is not a gift.”
    Chancellor Kent says, 2 vol. p. 354, 1st edition, Lecture 38, “Gifts inter vivos have no reference to the future, and go into immediate and absolute effect. There exists the locus penitentice so long as the gift is incomplete, and left imperfect in the mode of making it, and a court of equity will not interfere and give effect to a gift left inchoate and imperfect.” The donor must irrevocably divest himself of a right to a thing and transfer it gratuitously to another, who accepts it, and the acceptance is necessary to the validity of the transfer. In page 355 he says, delivery in this as in every other case, must be according to the nature of the thing. The donor must part, not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment, or some equivalent instrument, and the transfer must be actually executed.” According to Jesse Brunson’s own statement, he being the person to whom the notes and bonds were delivered, his father never intended to part with his power and dominion over them. There was no transfer or assignment whatever.
    2. The second question is as to interest. The administrator is liable to interest before the expiration of the two years when he receives money and employs it for his own benefit, which he did in this case. He alone can show how he employed tfle money, and whether it was necessary to retain it to pay^debtg.
    3. The third question is, as to the advancements being brought, m for the benefit of the widqyv. By the English law and construction of the statute of distributions, no benefit shall accrue to the widow from bringing in advancements to children. 3 Bacon’s Ab. 77; Ward vs. Lant, Prec. Chan. 182, 184; Kircudbright vs. Kircudbright, 8 Vesey, 51. In North Carolina in Conference Reports and Taylor’s Reports, a different decision was made upon the construction of the act of 1784. By that act she is entitled to share equally witia all the children, and to have a child’s part. Part of-what? of the surplus personal estate of the intestate after paying debts and profits. Of course the statute does not divest the child of any property which has been given to him. He may, if be pleases, keep it all. In this case one of them elects to do so, and that part given to that child was no part of the personal estate of the intestate.
    Cook, for Jesse A. Brunson,
    said, 1. In the distribution of personal estate asnong the widow and children of the deceased, when advancements are to be brought into hotch-pot, the advancements are to be valued at the date of the gift, and the testator’s estate is to be estimated and valued at his death, if, then, one child has been advanced in money, or other valuable thing, as much as the shares of the children not .advanced would be were the whole estate divided at the death, he cannot come in without bringing in the property advanced.
    In this case Ashbell Brunson was so advanced in negroes, and cannot come in unless he brings those negroes in. This he will not do, as he would be greatly the loser thereby.
    2. After the death of testator, Mrs. Brunson, his widow, received from the administrator very near her full share of the estate. For the purpose of ascertaining this we must ascertain the value of the estate at the time she received her property. If she received her share in value, she cannot come in for the after hire or increase of the remaining ne-groes. If she did hot receive her full share, then she will be entitled to her aliquot share, or the balance coming to her, and her proportionable share of the increase and profits as that balance bears to the whole found. She chhnot dome in lor an equal division of the increased value of the negroes and their hire without also bringing in the increased value that part received by her.
    3. The wife is entitled under the act of 1784 to one fifth of the personal estate of which her husband died possessed. She is not bound to bring in any advancements made to her by her husband, nor has she any right to compel the children to bring into hotchpot any advancements made to them.
    It is believed the act of 1784, c 22, § 8, 9, can receive no other construction. By the eighth section it is enacted, “If the husband die leaving no child, or not more than two children, the widow shall be entitled to one third of the personal estate.” What personal estate? Manifestly the personal estate of her husband. “If leaving more than two children, then the widow shall share equally with all the children, she being entitled to a child’s part.”
    Suppose the case of no child, would the next of kin, or the widow, in that case, have to bring in their advancements before the one could take the one-third or the other two-thirds of the personal estate? That will hardly be contended. Suppose one child, would he have' to bring in, and could he compel the widow to bring in her advancements.
    There is nothing in the act to warrant such a construction.When the case is varied, and there are three children, what reason is there to suppose the legislature intended hotchpot in that case if not in the two former. It is said the act says, the widow shall share equally with the children, being entitled to a child’s part. What is the meaning of shall share equally with all the children, that forces this construction?' Shall be entitled to a child’s part of what? As we contend, of the estate of her husband left at his death. If there are three children she is entitled to a fourth; if four, to a fifth,, if five, to a sixth; if six, to a 7th, &c.
    But it is said by this construction, she will not share-' equally with all. That when the children come into hotch-pot, some will receive more than her. To this it may be answered, that should that be so, some one- will receive just as much less so that her share will not in the least be affected b’y this operation. Where there are four children, they can in no case receive more or less than four-fifths of the estate of testator, left at his death. The previous advancements are only to settle equities among themselves, under the act of 1715. Were it not for that act, the children could not be brought into hotchpot. There is no act requiring or permitting the widow to'come into hotchpot;, she is not mentioned in the act of 1715, or any previous act. The subject of advancement is not mentioned in the act of 1784. By what authority, then, can she come in or be brought into hotchpot? The legislature in this act, in all its provisions; is directing and settling the rights of the wife and children to the estate of which the intestate dies seized without any reference to what he once had, either before or during the coverture. It is so in relation to the real estate, and there is nothing showing a different view in relation to the personal estate. Indeed, it appears manifest by the provisions and wording of the ninth section, that the legislature so considered the subject. By that section it is directed, that the same jury that lays off the* dower in lands shall lay off the widow’s share of the personal estate of which her husband died possessed, and to which she is entitled. Here the words of which her husband died possessed, and to which she is entitled, manifestly shows that the widow was only entitled to an equal sharé with the children, of the property of which her husband died possessed. How could a jury laying off dower settle all the difficult and complicated accounts and legal questions arising under the law of hotchpot. They could very easily count the number of children, and lay off the widow’s dower, and her share of the personalty, that being as in this case, one-fifth, and leave the children to settle their equities among themselves; she .th.en would emphatically share equally with all the children, and would have a child’s part of the personal estate of which her husband died possessed.
    The law of hotchpot has never been considered as applicable to the widow. At law, the wife cannot be advanced by the husband; for gifts to his wife are void. It is true, he can, through a trustee, give to her real or personal estate. When must the gift be made? — must it be during coverture or before or both?
    The law certainly never has been understood or acted on in this state as now contended for. If the law is so,, the wife, instead of taking a child’s part of what her husband died possessed, will in many cases take all, and in almost every case take more than the children. She will be gainer by every advance made to the children of a former wife; made too before she had any connexion with the father. Suppose all .the children fully advanced but one, then she will take 'half the estate, which would be more than she would be entitled to, if there were no children at all, for in that case she would only be entitled to one-third. Suppose then) all advanced, then she would be entitled to the whom, thus placing her in a better situation than if there had been no child. Could the legislature mean such an absurdity? I am aware of the case determined by the court of Conference, reported in Taylor’3 old North Carolina Reports, a book of but little authority. The reasons there given for the decision are entirely unsatisfactory, and the case was badly argued. It proceeds upon the false supposition, that it was necessary to give this .construction, in order to give the,wife an equal share with all the children. The provisions and wording of the- ninth section seem to have been entirely overlooked, as well in the argument as in the opinion of the court. The views now offered and the absurdities to which that construction would lead, was not presented to, or considered of, by the court.
    3. Upon the question of interest, within two years. If all the available funds or cash be taken, and the amount pa'd the legatees, within the two years, be deducted, say $3000 to Mrs. Brunson, $ 1000 to Robert, and $5000 to Ashbell. then make Jesse’s advancement in the lifetime of his father,, equal to the rest and not one dollar will be in his hands.
    4. Jesse is entitled to compensation for collecting the gift notes; that was the agreement between him and his father when he received them, on his answer. He would be entitled to this without any special agreement.
    Five hundred dollars is too small a compensation for managing the estate of his father and mother; it is entirely inadequate.
    All the negroes of the estate were in possession of his mother. She received the hire, and whatever it is must be taken from her share.
    6. Jesse is entitled to his counsel fees, which v^ere rejected. Wins, on Exec.
    Boyd and Cave Johnson, for Ashbell Brunson’s distributees, said — It is insisted that the delivery of the notes above specified, without assignment,- is a good and valid gift.
    In the case of Canfield vs. Monger, 12 John. 346, a note given to another to. collect and apply the proceeds to the payment of a debt, was holden to be an equitable assignment? and that trover could not be maintained; the same case is reviewed in Wheeler vs.-Wheeler, 9 Cowen, 34, and sustained. It is also holden in the case of Wells vs Tucker, 3 Binney, 366, that the delivery of a bond to a third person for the use of another, is a good gift to the donee.
    See also 1 Caine’s Rep. 363. Franklin Bank vs. Raymond, 3 Wend. 69; Pearl vs. Wells, 6 Wendell, 291.
    In the case of Grangiac vs. Jlrden, 10 John. 292, the delivery of a lottery ticket to an infant daughter, by writing her name on it, or after declaring on the part of the father that it. was her’s, held a good gift; the ticket drew a prize of $5000, and the amount recovered in assumpsit.
    See also Heath vs. Hall, 4 Taunt. 326; Chitty on Bills, 8 n. q. 1. The mere delivery of a chose in action upon a good or valuable consideration holden good. Prescott vs. Hull, 17 John. Rep. 292.
    In the case of Constant vs. Schuyler, 1 Paige, 316, the delivery of a promissory note is holden a good donatio mor-tis causa. See also Ranker vs. Guellin, Chitty’s Bills 3 (i) 85 (i); Miller vs. Miller, 3 P. Williams, 358; Gardner vs. Parker, 3 Mad. 184.
    See Matthews on Executors, Law Library, 57; Toller, 234; gift of bond .or bank notes good.
    In England a distinction is taken in many cases between promissory notes under seal and not under seal — the delivery of-the former holden good, and the latter not as a donatio mortis causa. It will be seen from an enumeration of the cases, that this is applicable alone to cases where the intestate gives bis own note, and not the note of a third person. Testator’s own note when under seal importing a valuable consideration, but when not under seal, the consideration may be enquired into, and if without a good and valuable consideration, it is a mere nudum pactum, it is not a gift- but a mere promise to give. Miller vs. Miller, 1 P. Williams, 358; Snodgrass vs. Bailey, 3 Atk. 214; Gardner vs. Parker, 3 Mad. 184.
    In the case of Constant vs. Schuyler, 1 Paige, the chancellor denies there is any reason for this distinction. And in the case of Wright vs. Wright, 1 Cowen, 578, testator’s own note holden good as a donatio mortis causa. ' .
    Bills of exchange and promissory notes are considered in law goods and chattels for many purposes, and the right passes by delivery in the same way.
    Under the British statute, making thp fraudulent delivery of “goods and chatties” an act of bankruptcy, the fraudulent delivery of promissory notes or bills of exchange was holden an act of bankruptcy. Cummins vs. Bailey, 6 Bing. 371.
    If a feme sole be possessed of notes or bills of exchange' and marry, the husband may sue in his own name without joining the wife. McNeilage vs. Holloway, I B. and A. 218. Burton vs. Dees, 4 Yer. 4.
    But if the delivery of the notes to Jesse A. is not a gift in law, it was the creation of a trust in'equity which Jesse accepted, and in pare performed in the lifetime of Doctor Brunson, and which he cannot now refuse to carry into effect. 10 Yer. 273.
    They further insisted that the chancery- court erred in allowing the widow one-fifth instead of one-fourth.
    One of the sons, Ashbell, being fully advanced, does not come into hotch pot; and there being three other children, and the widow, she should have had a fourth; and should also have had the benefit of the advancements made the children who came into hotch pot. See William’fe Executors, 948, 949.
    
    The statute of 1784, ch. 22, sec. 8, intends to place the widow on a footing of equality with the children, and this can only be done by giving her the benefit of advancements. If a man die having nine children and widoyr, having had one hundred thousand dollars, and advanced eight of the children their full share ‡ 10,. 000, and leaving for himself and wife, and younger child, § 20,000, the eight children being fully advanced, do not come into hotch pot, and yet, according to the construction'contended for, the widow is only to have the one-tenth, and the balance to go to the other: or if they come, into hotch pot, unless the advancements are included for the benefit of the widow, she will only get one thousand dollars,, whilst the children each have over ten thousand. Such a construction of the statute in every case where the’ children are numerous, and any of them advanced, instead of making better provision for the widow, as the preamble shows was the design of the legislature, operates' to her destruction. In the case now before the court, Jesse was advanced in the lifetime, $4,800; Robert, 5,400; Ashbel’s children, 4,500; Ashbell, 11,500; besides the gift notes; leaving, at the death, about $12,000 in money, and in negroes, 5,100, and the court of chancery decrees:
    February 8.
    That the widow should only have the one-fifth part of the balance of the estate, although Ashbell’s heirs being fully advanced, claim no part. Whilst the children are all rich, the widow is left with comparatively nothing.
    See Conference Reports, N. C. 361, where this construction of the statute is sustained.
    The court also erred in directing interest to be computed át the end of two years, from administrator granted. The' administrator received $ 7,000 in money, and about $5,000 in notes, besides the gift notes. The whole expenses of the administrator, including debts, was about $715, yet the cash on hand is retained. The testimony shows that he took a' portion of the notes, (New York notes returned in the inventory,) and got them changed at Dover. Jesse A. having been embarrassed greatly before the death of his father, built a' mansion house, furnace, &c. as shown by the evidence, from whence it is inferred that he used the money.
   Reese, J.

delivered the opinion of the court.

The first question of importance which the record presents, is upon the alleged gift of Asahel Brunson,- the elder, to Jesse A.- Brunson, of the bonds and notes, for the benefit of himself, and his two surviving brothers. And upon this question two considerations arise. 1. Was the gift in fact made? 2. Did the delivery of the bonds and notes give to the donation-validity in point of law?

1. As to the matter of fact we think that no doubt can well exist. The answer of Jesse A. Brunson, in effect admits the gift, although with some doubt and qualification. The conduct of Jesse A, Brunson strongly proves it, by bringing-suit in the life time of the father upon one of the bonds, for his own use, by giving up one of the notes, and taking a new one payable to himself; by paying over to each of his brothers a portion of the proceeds of the notes during the life of the father, and especially by omitting all mention of the notes in the inventory returned by him as executor.

But the gift is abundantly proved by the statements of Jesse A. Brunson to various witnesses, both before and after the death of the father, and also by the declarations of the father in his life time, to several persons. It is well established as a fact, therefore, that Asahel Brunson, in his life time, gave the notes and bonds in question to Jesse A. Brunson, to be collected by him for the joint benefit of himself and his two brothers.

2. It remains for us to enquire whether the gift and delivery of the notes and bonds operates to vest a property in the money secured by them, and is a valid donation, inter vivos.?

Upon this subject, in England and America, there have been some fluctuation and conflict of decision, arising almost' exclusively in questions of donations mortis causa. One thing with regard -to the matter was conclusively settled in England so early as the time of Lord Hardwicke; namely, that 'there might be a valid donation mortis causa, of a bond,' by delivery. But it was then decided that this was not the ease with regard to promissory notes and bills of exchange. It is not necessary to detail the reasoning of Lord Hardwicke, as to the grounds upon which the distinction proceeded. However satisfactory at the time, it became less and less so as the negotiability of notes increased, and as they became more and more nearly assimilated to money itself. Perhaps the distinction which now appears shadowy and merely technical, arose, in fact, from an anxiety to limit the number of cases, as much as possible, of donations mortis causa, because of the great danger of fraud and perjury in those cases.

In the case of Rankin vs. Wegnelin, at the Rolls, so late as 1832, where a husband in contemplation of death, delivered certain bills of exchange payable to his order, to his wife, saying, “take these for your own use and benefit,” and he died within a fortnight of the delivery of the bills, without endorsing them, and the executor took them from the wife, and collected the money; the question was, whether they were subjects of a donatio mortis causa? and it was urged that a chose in action could not be so given.' The Master of the Rolls said the contrary doctrine h?d been well established since the time of Lord Iiardwicke’s opposite decision; and he held that the executors were trustees for the wife, and he relied on 1 Bligh’s Rep., New Series, 497; 1 Dow’s Rep. N. S. 1; Chitty on Bills 3, note (i), 8 Ed. So also, in this country, in the case of Constant vs. Schuyler, 1 Paige’s Rep. 318, the Chancellor of New York held that the promissory note of a third person, is the proper subject of a gift causa mortis. And referring to the distinction of Lord Hardwicke, he says, “Notwithstanding the attempts which, have'been made in England to distinguish between a promissory note and a bond, in relation to the validity of a gift of a chdse in action, there cannot, in reason, be any difference. A gift of either is valid as a symbolical delivery of the debt on the note or .bond, and all the delivery of which the subject is capable'.

Without mnltiplying references to authorities on either side •of the Atlantic, we may conclude that the law now is, that these dioses in action constitute a proper subject of valid donation in view of death; and a fortiori of valid donations inter vivos.

3. There being three children, and the descendants of another in the present case, and one of the three having been so fully advanced in the life time of the intestate, as that he chooses not to come into account and contribution with the other children, the question arises, whether the widow is entitled to a fifth, or to a fourth of the personal estate; or, in other words, whether she has a right to insist that the advancements to the children shall be brought into contribution?

It is conceded that the widow in England has no such right under their statute of distributions, nor in this state, by the provisions of the acts of 1715 and 1766. But it is said to result here from the purview of the statute 1784, c. 22, § 8. The question is for the first time to be decided in this state, and there is but one decision in the state of North Carolina, Upon the question, which was made by a portion of the court called the court of Conference, in the year 1801, Duke vs. Duke, Conf. Rep. 361. As that decision is one way, and the uniform action of our courts and our community is known to have been, for half a century, another way, we shall, for the present, consider the question as an open question.

And at the threshold, the consideration presents itself, that the doctrine of collation and contribution of advancements, in lands or in personalty, as among the children themselves, is of statutory creation; it is founded, as to personalty, upon the statute of 1766. The widow., it is conceded, is not, by the provisions pf the statute, included within the scope of that principle. As to lands, it is founded upon the very statute in question, 1784, c. 22, and its operation is limited to children. If the widow have this right, therefore, it is not expressly and in terms given as it is to the children in both the instances referred to, but arises from construction and implication.

That a principle so peculiar in its character, and so pervading in its operation, and created in other instances by terms so full and explicit, should have been intentionally applied to the widow by words which create only an implication, it is difficult to believe.

The principle of contribution among the children is equality. This is pot in all instances attainable, may be, and generally will be approximated. But the widow stands upon grounds peculiar and isolated — in some respects better than that occupied by the children, in some respects worse. For instance, in case of intestacy,: — if there be no children, she gets only one-third of the estate; the balance would go even to distant relations o;f the husband. But if there be no wife, the child or children get all in case of intestacy. On the other hand, the children may be disinherited, they cannot claim against the will of the father. But the wife can claim against the will of the husband, and can compel the legatees, be they children or strangers, to contribute, pro rata, till her third or her child’s part be made up. The husband may, by will, give his whole real and personal estate to the wife; the children ¡cannot object; but if he devises it to them, his wife can object to the extent and effect in the statute under consideration, mentioned.

These remarks are made to show, that the attitude and rights of the wife, and of the children, are so distinct and different under the statute, and, in general, that equality, as between them, cannot be said to have constituted the leading object of the statute. Thus, if the husband die leaving one child, that child shall have, in case of intestacy, two-thirds of ,the personal estate; the wife shall have one-third. The child .so taking two-thirds may have been largely advanced. Yet it is conceded in the argument that this is not a case for contribution. The widow takes her one-third and no more. Again, if there be two children, they and the widow severally take a third; but these two children may have been largely advanced in the life of the father; yet here again it is conceded, that there is no just claim for contribution.

The wife is still entitled to her third of the personal estate at the time of the death.

But, says the statute, “If the husband shall die, leaving more than two children, then and in that case, such widow shall' share equally with all the children, she being entitled to a child’s part.” Here, for the first time, it is insisted, comes forward the principle of contribution, by force of the words, “share equally" and “child’s part.”

If there be no child she gets but a third; if there be one child, and he largely advanced, still she gets but her third; if there be two children, and they be largely advanced, still she gets but her third; but if there be three children, and they largely .advanced, then by the argument, she may get by, the principle of contribution, which here first arises, the whole personal estate; whereas the leading ohject .of the provision seems to have been, that as the number of children increased, her interest should diminish, one-third being deemed top much where there, might be three or more .children.

That the phrase, “child’s part,” means only the aliquot portion of the wife according to the number .of the children, may be proved in this manner. There are two cases put in this eighth section, where the wife can claim her:third, or her .child’s part, according to circumstances,. :One is, where the husband dies intestate. That case we have considered. The other is, where he makes a will, but does not make her an adequate allowance, and she dissents. Suppose, in the latter case, the husband by his will, should make but a slight provision, or none at all, for his three children, and should bequeath the bulk of his personal property to collateral relatives, or to strangers, and the wife having dissented, should file her bill. To what would she be entitled? To a child’s part, says the statute; and in the case supposed, there are three children, what would be her child’s part? Why the legatees, who are strangers, would insist that she should have an actual child’s part; that she should share equally with them, using her present argument. But she would reply, that as there were three children, she was entitled to one-fourth part of the personal estate; and we think she would reply correctly.

That we place the proper construction upon the eighth section of the act of 1784, c. 22, we think is made manifest by the provisions of the ninth section. That section having described the mode in which the widow shall sue for, and have assigned to her her dower, provides that the sheriff and jury, spoken off before, “shall also, allot and set off to such widow, such part or portion of the personal estate of which her husband, died possessed, and to which, by this law, she shall be entitled; which part or portion shall be and enure to such widow,” &c. This shows that the corpus of the estate, put of which she could claim her share, was the personal .estate of which her husband died possessed. And the nature and character of the tribunal to whom the duty was assigned of making the allotment, excludes the idea that it could be any part of their province to take an account of advancements.

As to the decision in the conference court of North Carolina, it seems to have been the only one which has been made in either state upon the question. It is, indeed, incidentally referred to in a recent case in N. Carolina, t Dev. and Batt. 329,330, without disapprobation.. The case itself seems not to have been very fully investigated or considered. If, how-ev.ep, our courts and our community had adopted and acted upop its authority, we should have hesitated at the time to have laid dpwn a different rule. But as so far from adopting and acting on the rule laid' down in that case, we know that the practical rule has been different, and conformable to the views set forth in this opinion, we are not disposed, by yielding to its authority, to change a practice under the statute, which we deem correct:

Upon these points, therefore, we affirm the decree.  