
    *Wilson and Wife v. Miller, et als.
    January Term, 1855,
    Richmond.
    Wills — Advancements—Pretermitted Child — Case at. Bar. — M has four children; to two of them he makes considerable advancements in his life time, and then dies leaving a will, by which he devises his estate to the four in nearly equal portions. After his death a posthumous child is bom (pre-termitted by the will). The act in regard to such a child, provides that he shall be entitled to such “portion of the father’s estate,” as if he “had died intestate; towards raising which portion the legatees and devisees shall contribute proportionably, ’ ’ out of their legacies and devises. (Code of 1819, p. 376, ch. 104, § 3.) Held:
    
    1. Same — Same—Same—Hotchpot.—The doctrine of hotchpot does not apply to such a case. The advanced children may therefore take their legacies without bringing in their advancements, and the pretermitted child is only entitled, under any circumstances, to one-sixth of the estate left by the father at the time of his death, to be made np by ratable contribution among the legatees.
    2. Same — Same—“Father’s Estate.” — Advancements constitute, no part of the “father’s estate,”' within the meaning of the law, or in any sense.
    3. Same — Hotchpot—Partial Intestacy.— The doctrine of hotchpot, prior to the Code of 1850, applied to no case of partial intestacy, (accord. Walton v. Walton, 14 Ves. Jr., 324, Snelgrove v. Snelgrove, 4 Dessausure).
    In October, 1787, John Macon, of Powhatan, married his second wife, and about twelve months thereafter, to wit: in November, 1788, he advanced to Caty Todd and Martha Todd Macon, (two daughters. by his first wife, who afterwards married Thomas and John Miller, respectively,) a number of slaves which he obtained by his marriage with their mother. By his second wife he had, during his life-time, three children, to wit: Margaret, (who intermarried with John Burton,) Elizabeth, (who intermarried with Joel Yancy,) and Robert C. Macon. In 1793 the said John Macon died, leaving a will, by which he devised to his second wife a considerable estate for life, in lands and negroes, in lieu of dower, and she afterwards elected to accept the provisions *of the will. The balance of the estate was, by the will, nearly equally divided among his said five children. After his death,. Ann Macon, a posthumous child, pretermitted 'by the will, was born, and in 1812, by Thomas Miller, her guardian, she filed a bill reciting the above facts, stating that her brother and sisters had made contribution to her out of their legacies, and praying that her mother, (the widow of said John Macon, who had, since his death, married Archibald Ereeland,) should be required to make similar contribution. The suit was pending until 1817, when an amended bill was filed by Daniel A. Wilson, and the said Ann his wife, (whom he had lately married,) claiming to be en-' titled to a further contribution from Caty Todd Miller and Martha Todd Miller, (the advanced children,) out of their advancements; and stating that, in making the contributions admitted to have been made, no account was taken of the advancements, as they were advised should have been done, in order to secure to the posthumous child (Ann) such portion of the father’s estate as if he had died intestate.
    This claim was made under the provisions of 1 Rev. Code of 1819, p. 376, ch. 104, the latter part of § 3, which is as follows:
    “When a testator shall leave children born, and his wife enciente, the posthumous child or children, if it be unprovided for by settlement, and be neither provided for nor disinherited, but oijly pretermitted by the last will and testament, shall succeed to the same portion of the father’s estate as such child would have been entitled to if the father had died intestate — towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.”
    This provision is engrafted into the Code of 1849, p. 518, ch. 122, <j 18.
    The case came on to be heard on the amended bill, *(to which all the above named persons were made parties), and in January, 1819, the court below dismissed the same with costs, and continued the case as to the other parties in the original bill.
    Brom this decree, dismissing the supplemental bill, Wilson and wife appealed to this court.
    
    John Robertson, for appellants:
    John Macon died in 1793, leaving a widow and five children, to each of whom he devised different portions of his property. In 1787, he gave, by deed, sundry slaves to his two eldest daughters, reserving a life estate. A sixth child, the appellant Ann Wilson, was born after his death, and pretermitted by his will.
    The questions are:
    1. What is the posthumous child’s portion?
    2. How is it to be raised?
    These questions depend upon the construction of the act of 1785, “concerning wills, the distribution of intestate’s estates,” &c., 12 Hen. Stat. 140; and the third section distinctly answers them both. It declares that a posthumous pretermitted child of a testator, “shall succeed to the same portion of the father’s estate as such child would have been entitled to if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them,” &c.
    To determine, then, what is the portion of Ann Wilson, we are simply to ascertain what she would have received if her father had left no will. Let us suppose, then, that John Macon had died intestate, leaving estate to the value of $10,000, having in his life-time given his two eldest daughters $3,000 each. If these *daughters had claimed to participate in the division, they must have brought in their advancements; which, added to the estate descended, would have made $16,000 — of which they and the other children, including the appellant, Ann, would have taken one-sixth, or $2,666 66% each.
    If the elder daughters, however, had declined to bring in their advancements, as doubtless they would have done, then they would have been excluded from the distribution, and the remaining four children, including Ann, would have taken one-fourth of the descended estate — namely, $2,500 each: their elder sisters each, as already said, retaining the $3,000 given them by way of advancement. And the same, I contend, would have been the result under the act of 1785, so far as the appellant, Ann, is concerned, had her father died testate, having previously made similar advancements, and leaving an estate of the same value. According, however, to the chancellor’s opinion, she would have received neither the one nor the other of the sums, so ascertained; that is, neither a fourth part of the devised estate ($2,500,) nor a sixth of the devised estate and advancements added together, ($2,666 66%), but a sixth only of the former — namely $1666 66%, less, in one view, by a third, and by upwards of a third in the other, than she must have taken, had her father died intestate.
    
      The chancellor rests his decision mainly ■upon the construction of that part of the third section of the act of 1785, which relates to the manner in which the portion of a posthumous child shall be raised. This portion, he says, is to be made up by the devisees proportionably out of the parts devised to them; and as the estate comprised in the deed of 1787, is no part of the estate devised, it cannot be called on for contribution. This is adhering too closely to the letter. Advancements are no part of a decedent’s estate, who dies intestate. Yet, as in cases of intestacy, they must be brought into account where those who have received *'them claim to come into distribution of the descended estate, so must they be brought in with the devised estate in favor of a posthumous child of a testator; because, as to such child, the law makes the testator intestate.
    If the statute be expounded, as the chancellor expounds it, so as to limit the posthumous child to the devised estate only’, then the last branch of the third section is made to contradict and repeal the first; and, contrary to a sound rule of construction, the great primary intent of the Legislature to fix the amount of the portion in conformity with the law of intestacy, is made to yield to the secondary object of pointing out the manner of raising it. If there were a moral or legal impossibility of effecting both objects, still the rule would be to carry out the primary intent, as near as the nature of the case would admit. But there is no necessary conflict between the two clauses. Having once ascertained the portion to which a posthumous child is entitled under the first clause, according to the law of intestacy — a case can never arise under any construction of the statute, where any devisee, advanced or unadvanced, need be required to contribute out of his devise more than his proportionable part towards raising that portion. For every advanced devisee must occupy one of three positions.
    Either his advancement must be just equal to the share he would receive, if it were brought in; or greater; or less. Where just equal or greater, it is clear he would not bring it in, since he would gain nothing in the first case, and would lose in the second. But even if he should, the un-advanced devisees could only be made to make up what the posthumous child’s portion would have been had there been no advancement, or none brought in. For example : in the case already supposed — should the advanced children elect to bring in $3,000, in order that they might get $2,666% ; still the other devisees could only be required to contribute towards making up $2,500 — one-fourth of the devised ^estate; and the increased sum of $166 66%must fall upon those whose folly or generosity created it. If it were possible, as it is not, according to the rule I contend for, that any part of this increase could, contrary to the intention of the statute, be required of the unadvanced dev-isees, the court would hold the election to bring it in as one exercised in fraudem legis, and disregard it.
    TYLER, J. When an advanced child comes in, does he not get an equal share with all the rest?
    Robertson. Undeniably, in a case of intestacy : undeniably not, I humbly conceive, in a case of testacy, where there is a posthumous pretermitted child; and for this plain reason, that the statute makes the testator intestate so far only as regards the ascertainment of the portion to be raised for the posthumous child, and the manner of raising it; but leaves the will quoad all the devisees, in all other respects, unrevoked. It is optional with the advanced devisee, as in a case of intestacy, to bring in his advancement or retain it; but he cannot thereby entitle himself, under the statute, to come into an equal division with the other legatees, or change the relation between himself and them created by the will. He may increase, if he will, the share of the posthumous child; but by so doing, the loss will only fall upon himself, and cannot be considered as an injury even to him: volenti non fit injuria.
    . Why then may not the court adopt a construction which applies the doctrine of hotchpot so far as the testator is, by the act of 1785, made intestate, and excludes it so far as he is to be regarded testate?
    THOMPSON, J. Has not the doctrine of hotchpot been held not to apply to a case of partial testacy?
    Robertson. It has been so held. But though it may be so as to all cases not embraced by the 3d section, yet *that section makes the case of a posthumous child an express exception, and necessarily controls the general principle as well in cases of partial as of total testacy.
    ■ At the former hearing of this cause, the application of the doctrine of hotchpot to any case whatever of testacy, was strongly objected to by Judge Tyler, on the ground that this doctrine is limited in terms to the case of a person dying intestate. On the contrary, I insist that by the 3d section of the act, that doctrine is in explicit terms extended to all cases of testacy where there is a posthumous pretermitted child.
    The learned Judge further remarked tha whenever this provision (of hotchpot) is applicable, the party bringing in the advancement must come into partition and distribution, and be entitled to an equal portion with the rest of the children; and argued that, therefore, where, by reason of a will, the principle of equality is abrogated on no principle of reason or justice, and certainly not by the terms of the , statute, can the party advanced be called on to return his advancements as a condition precedent to his receiving his legacy. I have already' endeavored to answer this objection. The object of the 3d section was avowedly not to create equality among all the children, but solely to give to the posthumous pretermitted child the same portion as if the testator had died intestate, and in no manner to disturb the dispositions of the will, however unequal, further than should be necessary to effectuate that object. To say, therefore, because an advanced child cannot be compelled, in cases of intestacy under that part of the statute which regulates distributions, to bring in his advancement except on condition of sharing equally with all the children, that he shall not, except upon the same terms, be required to bring it in quoad a posthumous child, under another and distinct provision of the same statute, specially providing for posthumous children, in cases of testacy, is surely a non sequitur; and contravenes the evident intent, if not the express terms of the statute.
    In further support of his objection to the application *of the doctrine of hotchpot in a case of testacy, Judge Tyler says: “In the case of actual intestacy, the posthumous child comes into partition and distribution with the other parceners and distributees, with the law of hotchpot limiting and controlling the distribution of the intestate’s estate; arid there being in such case no testamentary disposition of the property in the way of the law, it declares, as a condition precedent to the receipt, by the advanced child of any part of the father’s estate, that he shall add to the father’s estate the amount advanced; and by so doing, shall come into equal partition and contribution, not only of the father’s estate, but of the amount of advancement returned. But in cases of testacy, and the birth of a posthumous child, the posthumous child itself not being able to come into partition, cannot call on any other child to act on that principle. The posthumous child’s portion of the father’s estate is ascertained by treating the father as having died intestate, and when ascertained is paid by contribution, it being impossible to apply the provision in reference to advancements in cases of testacy without setting the will aside in toto. For, in the case of a will, there are not parceners and distributees to come into hotchpot, but devisees and legatees; and as the posthumous child, in case of a will, never comes itself into partition, it can never call on any one else to come in.”
    To illustrate this view, the Judge puts a supposed case.
    It might not seem respectful to analyze with a critical eye, this train of reasoning, designed as a refutation of the argument offered on the part of the appellants. It may at once be conceded, that if the mode in which the learned Judge supposes the principle of hotchpot is to be applied, in cases like the present, were the only one, or were the one proposed for the appellants, it. would be justly condemned; for, certainly, under a statute which gives a posthumous child, in a case of testacy the same portion he would have had in case of intestacy; any principle, whether that of hotchpot of any other, *which would give him more must be wrong; as much so as that which should give him less. But this result in giving him more, and the other children less than their just portions, is produced, not by applying the principle of hotchpot, in accordance with the rule as claimed for the appellants, or with any just or necessary rule of construction, but, if I may be pardoned the expression, by a misapplication of that principle. The Judge has applied it, as though the case were one, not of testacy or modified intestacy, but of actual and total intestacy; not for or against the posthumous child only, but also for and against the unad-vanced and advanced devisees inter se. This, I humbly apprehend, is the sole cause, why, according to his view and illustration, the injustice is shown against which he remonstrates. That injustice can never exist, if we bear, in mind, that it is the posthumous child only of a testator, who is to have the same share as if the father had died intestate, and not his other children ; and seek to apply the principle of hotchpot so as to effectuate that object, and not so as to defeat it, and to accomplish one the statute never contemplated. What is meant by saying, that in cases of tes-tacy, a posthumous child cannot come into partition, and cannot, therefore, call on any other child to act on that principle; or, bjr the great stress laid on the distinction between parceners and distributees on the one hand, and devisees and legatees on the other, I do not perhaps very clearly understand. If it be meant that a posthumous child is not technically a parcener, even that, with due deference, may be doubted. For, as the law says he shall share as if the father had died intestate, it in effect makes him, as well as advanced children, parceners, though the others continue dev-isees, a parcener being one who shares, but not always equally with co-parceners, in an intestate’s estate. Admitting that in cases of testacy in general, there are not parceners and distributees in the technical sense of those terms, but devisees and legatees; yet in this case, if the posthumous child is not a parcener by force of the ^statute, clearly she is not a devisee; yet, by the bounty of the law, the parens patriae, she is to receive a share of her father’s estate, the same share, by whatever name called, as if she . had been technically a parcener. Whether that share be on a partition or division, or by way of contribution, still it is to be the same as if her father had died intestate.
    Nor, admitting it cannot be properly called a share on partition, can that affect her right to claim, as in cases of intestacy, against the advanced children. It is true she cannot compel them to bring in their advancements, and still less to do so, to their own injury, or that of their co-devisees^ but she has a right according to the benignant provisions of the statute, to say, you who have had large advances, shall take no part against me of the estate left by our father, unless upon the same principles on which you would have shared that estate if he had left no will; for as to my portion, the statute has declared his will shall have no effect.
    Judge Tyler assumes it to be impossible to apply the principle of hotchpot to a case of testacy, without setting the will aside in toto. This is, in effect, to say it is impossible to apply to a case of testacy, the law of intestacy, which the statute says shall be done, for the principle of hotchpot, is an essential part of that law. There is no difficulty in applying it without abrogating the will, further than the statute declares it shall be abrogated, that is, so far as the posthumous child is concerned, and by so applying it, not only is the setting the will aside in toto avoided, but the injustice also of the rule approved by Judge Tyler, discarding the principle of hotchpot. *To prove this, let us take the hypothetical case stated by Judge Tyler:
    Estate owned by the testator at
    the time of his death, $20,00i>
    Devised to A 2,000, B 2,000, C
    16,000, $20,000
    A has been advanced 1,000, B 1,000.
    They are supposed to claim both advancements and legacies.
    The result of the different rules will be as follows:
    
      
    
    *To show more clearly the results of these different constructions, I have prepared tabular statements which I beg leave to present to the court. These tables demonstrate to the eye, as well as the understanding, the justice and practicability of applying the principle of hotchpot, according to the construction contended for, on behalf of the appellants, and the error as well as the injustice of excluding that principle as insisted on for the appellees. They prove that according to the one, in every case of testacy, where advancements have been made, the posthumous preter-mitted child will receive precisely the same portion which such child would have received, if the father had died intestate. That in every such case the unadvanced devisees will contribute towards raising that portion, in the same proportions and to the same extent, out of their respective devises, as though no advancements had ever been made; and precisely the same amounts and proportions which they would be made to contribute by the rule of the appellees. Whereas according to their construction, while the share of unadvanced devisees, will always be the same as prescribed by the statute, and conceded by the appellants, neither those of the advanced devisees, nor of the posthumous child, can ever actually or relatively to each other be the same as they would have been, had their father died intestate.
    The three first tables for convenience, suppose the intestate and the testator, respectively, to have had estate of the same value, the same number of children, including a posthumous child, (that of the testator being pretermitted by his will,) and to have made corresponding advancements.
    I. The first table shows the result where the advancement is just equal to the share, which the advanced child would get (in a case of intestacy) if he came into distribution.
    II. The second table, where it is more than he would get by so doing.
    III. The third, where it is less.
    *There is a fourth table, showing the results in a case of partial intestacy.
    The one construction, leaving unaltered the inequalities, which the testator may have thought proper to create among his living children, secures to his unborn offspring that justice the parent ought to have done, if he had foreseen its birth, by giving it the benefit of the law of intestacy.
    The other widely departs from the law of intestacy, by rejecting one of its most essential features, and the manifest injustice it must occasion to the posthumous' child, is a strong proof of its error.
    
      FIRST TAB LE:
    
      •On the hypothesis that the amount advanced is jUst equal to the share which, in a case of intestacy, the advanced child would take if the advancement were not brought in.
    
    
      
    
    SECOND TABLE:
    
      On the hypothesis that the amount advanced exceeds the share to which the advanced child, in a case of intestacy, would be entitled if the advancement were brought m.
    
    
      
    
    
      THIRD TABLE:
    
      On the hypothesis that the amount advanced is less than the share to which the advanced child, in a case of intestacy, would he entitled if the advancement were brought m. _ _
    
      
    
    CASE OP PARTIAL TESTACY :
    
      Decedent leaves estate of $12,000; of which he devises to John $2,000, to Richard $1,000, and dies intestate as to $9,000, havino advanced to John $12,000.
    
      
    
    
      *Macfarland, for the appellees,
    Submitted, that the conclusion must be the same, whether the statute was construed literally or freely, with or without regard to supposed parental wishes. The spirit of the statute, not less than the letter, would be violated, by departing from its terms.
    It is the estate of the father, exclusively and alone, which is charged with providing for a pretermitted, posthumous child; and the portion of such child is to be raised by proportionate contributions from among the devisees and legatees, ! ‘out of the parts devised and bequeathed to them.” It is the proper estate of the father, as it was at his death, not as it might be increased by computing the advances he had made, to which alone the child has any claim. The will is not set aside, nor is the distribution therein made disturbed, except to charge the legatees and devisees with contributing proportionably to the portion of the child. As between the legatees and distributees, the value or amount of their respective shares is diminished, in the ratio of their proportionate contributions, but they remain equal or unequal participants of the testator’s bounty, justas the will may'have provided. The will may make an unequal distribution of the testator’s property; and if it does, it cannot be said that the father would have done as much for the posthumous child as he did for any other, advances included, if he had known or adverted to the prospect of another heir. So the will may provide equally for the children, in the face of large advances to one or more of them. If it do, the presumption is, the testator would not have estimated the advances for the benefit of a child expectant, when he declined it in favor of children for whom he was providing.
    The rule prescribed against an advanced child in intestacy cannot be applied here, without producing results irreconcilable with the whole spirit and letter of the statute, and against the ordinary conduct of parents in providing for their children. In intestacy, *an advanced child is shut out from his father’s estate, except he will consent to bring into distribution the advances he may have received. - That is, unless he charge himself, for the benefit of others, with so much of his own estate as was derived from his father, he is excluded from the inheritance. The distinction between the son’s estate and the father’s . estate is preserved, and the advanced child is placed under the condition of surrendering his own, as the ground of his claim to share with other parceners or distributees. In intestacy, there is nothing against the presumption, that the father would have provided equally for his children, if he had disposed of his estate, and hence the rule against advanced children when he dies intestate. But when the father distributes his estate, and gives, by his will, to an advanced child, as large a portion as to those who were not advanced, it cannot be said that he would have treated I the advanced child differently, for the sake of a child unborn, if it had occurred to him to provide for it. This may explain the difference of the two rules, in respect to intestacy, and'posthumous children. At any rate, the language of the two statutes differ essentially; the one requiring a child to account for his own property, so far as it was obtained by gift from his father, before he can claim any part of the estate ; and the other, giving a child his share of his father’s estate, and confining it to that. Suppose a father to have two children, one, of whom he had advanced to the extent of $10,000 — at his death he has an estate of $10,000, and no more, which, by will, he divided equally between his two children, and dies without making any provision for a posthumous child. In this case, the letter and spirit of the statute would be satisfied by assigning the posthumous child a third of the legacies. But, on the confiict-' ing theory, he would get a third of $20,000, greater than both the shares of the other-children united, and be provided for greatly beyond the unadvanced child. The latter would be made to suffer, on account of the advances to his brother, for the act is ^peremptory in prescribing, that the portion of the posthumous child shall be made up by proportionate contributions by the legatees out of their legacies. This would . be as unjust as it is against the terms of the statute. Suppose a father to have an only child, to whom he had given $20,000, and then, by his will, to leave him all he had, the competent sum of $10,000. There is a pretermitted posthumous child, and the advanced child had, long before his father’s death, been reduced to poverty by misfortune. In such a case we would not expect a father to overlook a dependent child, whose necessities were crushing him, in order to augment the portion of a child expected to be born. Such a course would be inconsistent with any known or approved theory of parental benevolence or justice. It would certainly not be in harmony with the affecting parable of the prodigal son. Nor would it consist with the design or letter of the statute, to permit the pretermitted child to take the whole of the father’s estate, as in such a case he would, upon the opposite construction, to the exclusion of a brother as much in need as himself. Because the statute requires the portion of the pretermitted child to be made up out of the father’s estate; secondly, because his portion is to be made up by contributions by all the legatees,regulated by a common per centage; thirdly, the per centage is to be levied on the subjects devised and bequeathed; and lastly, because it is clear the statute does not contemplate an absorption of the legacies, or of any of them, by the provision secured to a pretermitted child.
    No scheme of construction of the statute is admissible which will not meet every case that may- arise. The construction above contended for has been recognized as the true exposition of the statute, by the subsequent law restoring, in the contingency provided for, to the legatees their contributions. It is very plain, from the subsequent act, that the legislature regarded the claim of a pretermitted child as confined to the proper estate of the father; and this act is incorporated *now with that in behalf of preter-mitted children. Code S18, § 18. The rule of hotchpot is inapplicable to the claims of a pretermitted child. There is nothing on which it can act. Hotchpot defines the acts to be done by a child, in respect to his own estate, to place him in a position to share in the distribution of his father’s estate. But no act is required of a pretermitted child, the beneficiaries under the will being required, as to him, in order to make up his portion, to abate their bequests ratably. There is not a commingling of properties, to be portioned out, so as to effect equality among parceners, counting their past receipts. The whole scheme and frame of the law is opposed to it. The legatees and devisees are to abate ratably; and it is the fund produced by scaling the legacies and devises, propor-tionably, which constitutes the child’s portion. In all this there is a manifest negation of any right in such child, to call upon the legatees or devisees to account for what had been previously given them. Nor is a just result attainable, upon any scheme ■of increasing the portion of a pretermitted child, by computing advances to other children, unless an entire, explicit provision of the law be rejected, and there be substituted for it an arbitrary and flexible assumption. The requirement is plain and peremptory, that the legatees and devisees shall make up the child’s portion, out of their legacies and devises, by contributing in a common ratio. So it would necessarily result, if the child’s portion was augmented by estimating advances, and adding their amount to the estate of the father, that his portion would increase with the amount of the advances, and might, and frequently would, exceed any one of the legacies; not that only, but might absorb entire legacies, to the utter exclusion for the estate of the legatees, or some of them. Illustrations of this will readily occur. Such consequences cannot ensue if the child’s portion be collected from the will, as the law in plain terms directs. A proposition which leads to such results is, of course, ^unsound. Nor are we at liberty to reject a provision of the law, so plain in itself, and which was suggested by the necessity of defining the mode of raising the portion of a pretermitted child.
    Robertson, in reply:
    The proposition I have endeavored to maintain, may be concisely stated. It is this:
    “In order to ascertain the ‘portion’ given by the statute, the testator must be considered, quoad the posthumous child, as intestate — and the principle of hotchpot applied as between him and any child advanced by the testator who may choose to claim a share of the estate devised.”
    But quoad the devisees, inter se the testator shall be held testate, and the will no further modified than to make them contribute towards raising the portion of the posthumous child; and in no case shall the unadvanced children be made to contribute towards raising that portion more than they would have done had there been no advancements.”
    It cannot be necessary to answer again the objection to this reading of the statute on the ground that it would unjustly increase the burthen of the unadvanced devisees. The terms of the proposition disavow any such pretension, and the tabular statements demonstrate that no such consequence can ever result.
    
      
      See monographic note on “Advancements” appended to Watkins v. Young, 31 Gratt. 84.
    
    
      
      No:te. — The case was argued here twice — a rehearing having been obtained by the appellant. All the judges .delivered opinions on the first hearing, and all but Tvi.ee, J., on the second. The opinion of Field, P., on the first hearing, Is not in the possession of the reporters.
    
   TYLEvR, J.

Suppose a father having advanced to A $50,000, gives him by will $20,000, and to B, $5,000. C, a posthumous child is born : A does not come in : What do you give C?

Robertson. What he would have had if his father had died intestate. As to him the statute, as it were, throws the will in the fire. He would get one half the estate bequeathed — $12,500; towards making up which A and B should contribute propor-tionably out of their legacies, and the balance necessary to make up the *$12,500 would fall on and in this case absorb the residue of A’s legacy— renounced in favor of C in like manner as A’s entire share as parcener would have been absorbed, had his father died intestate, and he (A) had refused to bring in his advancement.

On the other hand it may happen, both where advancements are brought in, and where they are retained, that a surplus will remain to the advanced legatee, of his advancement or legacy or both after the portion of the posthumous child is satisfied: and it has been asked what is to be done with this surplus, of necessity it must belong or revert to the advanced legatee. The bringing in, or retaining the advancement can only affect the shares of the advanced legatee, and the posthumous child — ■ no loss can accrue nor benefit be derived, to unadvanced legatees. They can have no claim to this surplus, because they will have received what the testator gave them, deducting their ratable contribution ascertained in conformity with the construction of the appellee’s counsel — and the posthumous child having also received his full portion can have no right to any thing further.

Great stress has again been laid on the phrase “father’s estate.” The counsel for the appellees contends that this phrase embraces only what was the father’s property at the time of his death. It is true, that property actually given by a father to his children can no longer in strictness be called his; still, practically, it may be considered as his when required to be brought in with a view to distribution: as a gift or loan on a condition annexed by law, that in a certain event, it shall revert, or be returned to be shared with the donor’s other children, whether born or unborn at the time of his decease. In that event it is in effect added to the estate left, and the whole constitutes a mixed fund, which may well be called the father’s estate, since it is by law to be divided among' all the children as though it were actually his, and it may be so called or considered as well as in a case of testacy under the act of *1785, as in one of intestacy. An estate devised, if we adhere to a literal construction, is no more a part of a, father’s estate at the time of division or when the right of a posthumous child attaches, than estate previously given by way of advancement; and a strict construction therefore would lead to the absurdity of confirming a posthumous child to the father’s estate when the father could have no estate at all.

Again, in this particular case, it is to be noted, that the advancements by the deed of 1787 were postponed in enjoyment until after the death of John Macon, the testator. During his life they were actually and literally a part of his estate, and so continued until the same moment when the residue of his estate vested in the devisees — -after his death. In strictness then the appellants have no better right, if the phrase be taken literally, to a share of the devised estate than of the advancements.

But in truth the appellants claim nothing, and can get nothing but a share-of the father’s estate in the strictest sense of the word, unless the appellees voluntarily give them more. Should the appellees elect to retain their advancements it is absolutely certain that the appellants must be confined to the estate left by their father.

It is equally certain should the advancements be brought in, that the whole portion of Ann Wilson can be satisfied out of the estate left — unless the advancements greatly exceed the share which those having them would receive should they be brought in. It is not credible they will be guilty, of the folly of doing this. No such ease is likely ever to occur. None such was contemplated by the Legislature, or can be anticipated by the court.

In the same spirit the counsel on the other side has again endeavored to defend the chancellor’s rigid construction of the provision of the act relating to the manner in which the share of a posthumous child is to be raised.

*The chancellor reads the act as though it had expressly declared that the whole portion, should come out of the part devised and bequeathed, or as he again expresses it, be made up by the dev-isees &c. out of the parts so devised, &c. The counsel has fallen into the same error. The language of the act is “towards raising which portion,” &c. If we must stick to the letter, we should have the words themselves and not translate -them into others which, as here, may have a very different import. Persons may contribute proportionablj7 towards raising a given sum without raising the entire sum required. That is precisely what is shown to be done by the devisees in the tabular statements presented to the court. They contribute towards raising the portion of the posthumous child. But these ratable contributions do not make up that portion where advancements have been made. There is a further amount to be made up, not by the devisees as such, but by the advanced child by reason of his advancements, and under the first clause of the 3d section, giving the posthumous child the benefit of the- law of intestacy. True, the additional sum may on the whole or in part come out of his devise; but he makes his election to-surrender it so far as is necessary to give-to the posthumous child his just and lawful portion ; and the law authorizing or requiring that election, it is not in the power of other parties or of the court to prevent or defeat it. The additional sum cannot properly be regarded as a contribution by the advanced legatee, beyond his proportion, according to the strict terms of the last branch of the 3d section, but where the election is made with a view to his own advantage, as a compensation imposed by the first branch of that section under the law of intestacy, which it adopts — as the condition on which he is allowed to keep his- advancements. On the improbable — not to say incredible supposition that the advanced child may bring in his advancements, when they exceed any share he can get by so doing, the additional sum given to the posthumous child is no-^contribution under the third section, but simply a donation — a free gift. If the Legislature had intended to provide for every case which could arise under the act of 1785, applying in regard to the posthumous children of testators the principle of hotchpot they could not well have used more definite and appropriate language.

To fortify his construction of the third section, the counsel for the appellees, resorts to an act passed more than half a century after. The act of 21st February, 1840, ch. 56, we are told is a legislative exposition of the act of 1785. If the very important question about which the judges of this court now differ, after full deliberation, had been fully discussed by the Legislature, their exposition, though then entitled to more weight, would still have been of no binding authority. But passing that, the argument is that the Legislature in 1840, must have construed the act of 1785, as it is construed by the counsel for the appellees, because they then declared, that the whole portion of a posthumous or pretermitted child of a testator, upon the death of such a child, under age, &c.» “shall revert to the persons, to whom such estate may have been devised, by the will of such testator.” It is very plain, we are told, that the Legislature must have regarded the portion of the posthumous child under the act of 1785, as coming- out of the devised estate, since it is made — -the whole of it — to revert to the devisees. Be it so: the statutory allowance is all the posthumous child can have, and that allowance must in all cases be made up by the devises out of the parts devised and bequeathed to them. How will the court under this legislative exposition dispose of a case of partial testacy, which has already been said to create an insuperable difficulty in the way of the appellants. Take the case in the 4th table. A father devises an estate of the value of S3,000, and leaves undisposed of property to the value of $9,000. He leaves two children to whom he devises the $3,000. A posthumous child is born. Now if this child is entitled to a share of the undis-posed estate, say $3,000, which all admit, *and also to one third of the devised estate, $1,000, how is this sum of $4,000 to be made up by the devisees, out of their devises, amounting in all to $3,000 only. How is this to be done in any case, where the estate as to which the testator is intestate, exceeds that disposed of by his will? and if that were possible, how is the posthumous child’s portion, consisting in part of undevised estate, to revert to the devisees from whom it was not derived? One of two conclusions is inevitable, either the statute cannot be carried out according to the literal construction of the words relating to the manner of raising the share of a posthumous child ; or if that be attempted, such child in a case of partial testacy, (such as may often occur,) must be deprived of any share of the father’s property not disposed of by the will.

It is no objection to our construction, to say that a posthumous child, not thought of by the father, may sometimes get more than children remembered in his will, that may equally happen under the opposite theory. It must happen wherever large legacies are given one or more children, and less than a just and equal share of the whole estate to others. And if it could not, it is no reason, because a parent, for sufficient cause, chooses to disinherit one child, known perhaps to deserve or to require nothing, that an unborn child should be cut off also With a shilling.

Nor is there any weight in the objection gravely urged, that an advanced child may have lost or expended his advancement, and should not therefore incur the hardship of being excluded from an equal participation in what his father might leave. Neither justice, nor the law of intestacy make any exception founded on the use or abuse by an advanced child, of his advancement. As to the hardship, that inflicted on the posthumous child, by excluding the principle of hotchpot, is no comparison greater than can arise to any other child, by applying it as proposed by the appellants. It is every way as just and beneficial in its operation under the third section, which adopts it in a *special case of testacy, as under the preceding sections which first gave it in cases of intestacy. A father gives away $90,000 to his first children, nine in number. One is born after his death unprovided for. All that is left, say $10,000 is devised to those who have already been advanced. What justice is there in any law or rule which would permit them to retain all that thejr had received, and take 9-10 of the pittance left? giving to them of the paternal property, each eleven thousand dollars, and to their helpless brother a hundredth part of what he would have had if the father had died intestate, and the advancements had been brought in, and a tenth of what he must have had if they had been retained. To put the injustice in a stronger light: let us suppose two persons die, similarly circumstanced except that one leaves a will, and the other none; the child of the intestate, under the chancellor’s construction, must get more, it may be ten-fold or a hundred-fold more than that of the testator, under a law declaring that the portion of each shall be the same. What just father would desire this?

On the whole, under our construction, applying the doctrine of hotchpot, as the statute commands, it is made the interest of advanced devisees, in every case which c^n arise under the act of 1785, to bring in their advancements wherever it would be to their interest to do so in a case of intestacy. By rejecting that principle it is made their interest in every possible case to withhold them. Under the one construction, the share of the posthumous child must always be the same, which it would be if the father died intestate: the exact share the statute gives him, and which a just father would wish. Under the other, his portion must invariably be less, and this injustice is done to a helpless infant entitled to the favor and protection of the law and of the court, without adding one cent to the share of unadvanced children, and with the certain consequence of increasing that of those having already undue advantages.

’‘'THOMPSON, J.

It is very manifest, from the decree complained of, the petition praying an appeal, and the opinion given by the chancellor in refusing it, that the sole question decided in the court below, and intended,to be brought up by this appeal, was, as to the true construction of the statute in reference to posthumous and pretermitted children, (raised for the first time by the amended and supplemental bill,) claiming to participate in advancements, and that the question presented by the original bill as to the accountability of the widow, as devisee and legatee for life, to contribution as other legatees and devisees, is not before us; that part of the case never having been adjudicated, but retained and continued by consent of parties for future decision. If that question were now before me, I have no hesitation in saying, that as at present advised, the widow was not liable, if the devise was no more than a fair equivalent for her rights of dower and distribution in her husband’s estate, in lieu of and as compensation for which it was expressly given by the will; for pro tanto at least, if not to the extent of the whole devise, even if it exceeded the legal claim, she must be regarded, not as a volunteer, but a purchaser of the highest dignity.

A preliminar}' question, not affecting the merits of the decision, was started by the appellant’s counsel rather in the form of a query or suggestion, than as a point assumed and insisted on in argument; that it was premature and irregular, and therefore erroneous, for the chancellor to take up and decide the case partially and by piece-meal, as he did by passing upon and dismissing the amended bill, leaving the original undisposed of. If there were any valid ground of objection to the proceeding, had it been done without or against the consent of parties, surely, that ground must be removed by the consent of parties given and entered of record. If the maxim consensus tollit errorem be applicable to any case, none can be conceived of to which it could be more pertinent than this. But, *in truth, the proceeding was neither premature nor irregular, and would have been strictly regular and in accordance with the usages and practice of courts of equity, without and against the consent of the plaintiffs. Where. the amended bill neither makes new parties, nor prays any additional measure of relief, than that sought by the original bill, but merely alleges new and additional matter of fact or law, in corroboration and support of the grounds of relief stated in the original bill, it would, no doubt, be not only premature and irregular, but erroneous, to pass upon a part of the case, on grounds of relief stated in an amended or supplemental bill irrespective of those alleged in the original. In such case the amendment should be considered as much part and parcel of the original bill as if originally inserted, and the two considered and disposed of together, at one and the same time, as if constituting but one bill or pleading. But when, as in the case before us, the amended bill claims an additional, distinct and different measure of relief from that asserted by the original, against new parties, upon new and distinct grounds, praying no further or other relief against the defendants in the original, by the amended bill, than that prayed by the original, what reason can be assigned why (and cui bono should) these two bills be regarded as so indissolubly blended and connected, as that the one may not be passed upon without the other? The questions presented by the two are not only different and distinct, but affect different parties. There was no necessity for further time to mature the cause for hearing upon the merits as to the amended bill, because all the facts were agreed by the pleadings, bill and answer, leaving only for decision a naked question of law arising upon or involved in the true construction of the act in relation to posthumous or pretermitted children. In such a case I am unable to perceive any reason why the defendant should not be permitted to meet the case and call for its decision in limine, as upon a demurrer, precisely as if it were an original bill standing alone *and unconnected with any other. I am aware of no authority or rule of practice forbidding it — cone has been brought to the attention of the court by counsel — and I take it for granted that none such exists; otherwise, it would have been found by the researches of the appellant’s counsel and brought to the notice of the court.

The next, and, in truth, the only question in the cause discussed by the counsel, as if he deemed it at all interesting and important, and meriting the serious consideration of the court, is that briefly commented on by the chancellor in his opinion and decree dismissing the amended, bill, and the petition presented by the plaintiffs, to the chancellor, praying the allowance of an appeal from his decree; and that is the question raised by the amended bill claiming the right for the posthumous and pre-termitted child, to require the advancements to be brought in, and to participate therein according to the true construction of the act of 1785, which took effect in 1787, and which forms part of the 3d l of ch. 104, of the Code of 1819, page 376; which is incorporated, with slight variations, in the Code of 1849, ch. 122, § 18, p. 518; wherein provision is made for posthumous children, pretermitted by will and unprovided for, and which reads as follows in the Code of 1819, being a literal transcript of the act of 1785, the law in force at the death of this testator, and therefore determining the construction of his will:

“When a testator shall leave children born, and his wife enciente, the posthumous child, or children, if it be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will, shall succeed to the same portion of the father’s estate, as such child would have been entitled to if the father had died intestate — 'towards raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.”

*This is a novel as well as an important and interesting question for the first time raised (so far as I am informed) by this case in the court below, and if raised before, in the inferior courts, certainly the first ever brought up for adjudication in the court of last resort.

For the appellants it is contended, that the posthumous child’s portion, under this section, is not determined by or limited to the estate, of which the father died seized and possessed, or entitled to and disposed of by his last will, but it is insisted that the after born child has a right to claim participation in the advancements made to any of the legatees or devisees, in the lifetime of the father in the same way, and to the same extent, as if he had died wholly intestate, in fact. In support of this pretension of the after born child, it is urged that she is so entitled, because, under the statute of descents and distributions, if a father die intestate, all his children must bring in their advancements of whatever kind, if they would come into the partition and distribution, with the other children or par-ceners and distributees of the estate, of which the intestate died seized and possessed ; and if they elect not to come into hotchpot, they must be excluded from such partition and distribution; and that the statute having declared her entitled, in terms so plain and explicit as hardly to leave any room for construction, to the same portion of the estate, as if the father died intestate, it follows as a necessary consequence, that we must interpret the .Legislature as intending to confer upon the posthumous issue all the rights and privileges incident to an actual intestacy, and among them the right to call for the bringing in of advancements, in order to carry out the main design and paramount purpose of the Legislature, to make an equal provision for the pretermitted child: that the first member of the section declares the object and intent of the Legislature to make precisely the same provision for the posthumous child as in case of actual intestacy, and the last, the quo modo of raising that provision by ratable contributions on the devises and bequests given *by the will: that the mode prescribed for raising it does not limit it to an equal aliquot part of the estate left by the father at his death, nor forbid its augmentation by bringing advancements into hotchpot; and that there is, therefore, no necessary repugnancy or conflict between the first and last member of the section: that the apparent conflict and repugnancy, and the supposed difficulty of carrying out both prescriptions of the law might be reconciled or removed by assuming that the advanced legatee or devisee, must of necessity occupy one of three grounds: first, must have been so largely advanced as to be loser rather than gainer, by bringing the advancement into hotchpot, and therefore would not elect to come in, and that if he would be guilty of the folly and injustice of so electing, an act of folly and injustice not imputable in law, according to the argument, to any man, he would be denied the right to make such election; secondly, must have been so advanced and so provided for in the will as to make it one and the same thing to him, whether he came into partition and distribution or not, in which event he would elect to stay out, or if he came in, the result would not be varied; and thirdly, when the advancement was so much less than the legacy, as to make it to his advantage to come in, in which event he should be allowed so to elect, and take his legacy, reduced by his contributive share in favor of the posthumous child, estimated upon the principle of accounting for his advancements. It is said that by thus construing and executing the statute upon the principle of hotchpot, and the equitable election adverted to, we exclude the unadvanced legatee, and virtually the legatee just fully advanced and no more, and are enabled to dispose of the residue of the estate as equally, among the pretermitted child and the unadvanced and the short advanced legatees, as practicable, and as nearly approximating the general result contemplated by the act as possible. And finally, the counsel of the plaintiffs insists, if such irreconcilable conflict and repugnancy, which the other side impute *to his construction, should be found to exist, then the particular or secondary intent must yield to the general or primary one, and that the first part of the statute containing that general intent, must be carried into execution according to its literal or general terms, maugre the last part, and regardless of the consequences and difficulties it may involve.

On the other hand it is argued and insisted, that according to the plain meaning and obvious intent of the Legislature, to be deduced from a rational construction of the law, the posthumous child is entitled to only a full equal share or portion of the estate, of which the father died seized and possessed, or to which he was entitled, and had a right to dispose of by will, and that if he disposes of it all by will, the legatees and devisees i'n that will, must contribute in ratable proportions, to make up the portion or share of the after born child ; that the mode of raising the portions (if not expressly and conclusively,) very persuasively indicates the extent of that portion, and explains, restricts and limits the general words of reference used in the first member of the act, “as if the father had died intestate,” to mean nothing more than to say, that in the contingency of such a birth, the after born should succeed to an equal portion of the father’s estate, meaning the estate that belonged to him at his death, and which he had a right to dispose of by will, and had so disposed of, and that it was not the intention of the Legislature by the use of these general words to apply to this case, the provision requiring advancements to be brought into hotchpot, found in the statute of descents and distributions, applicable from its very nature, reason and terms, to cases of actual absolute intestacy only, and not even applicable to cases of actual partial intestacy, until the adoption of the Code of 1849 — and the counsel on both sides have favored us with tabular statements and calculations to illustrate their respective views, and as showing the remote effects and consequences to which the opposite constructions would lead.

*T7pon the first reading of the statute, the chancellor’s construction of it, which is the one insisted on by the ap-pellee’s counsel, seemed to me to be the plain and obvious one, and the more I have examined and canvassed it, its consistency and accordance with the reason and spirit, and even the letter of the law, has become but the more apparent to my understanding. If it be possible to allow the after born child to call for advancements, without producing irreconcilable ’conflict and repugnancy between the two members of the section, and disregarding that which levies the portion of the after born child upon the devises and legacies in the will, it must be conceded on all hands, that these advancements, if brought in at all, are only to be so brought in and accounted for quoad the pretermitted child, and not for the benefit of all as in case of actual intestacy; and if so, I cannot conceive of a case of bringing ' in advancements, whether large or small, much or little, that will not, whilst it enures to the benefit of the after born child by augmenting its portion, at the same time operate to the injury of the un-advanced legatees, or those just equally or fully advanced; nor can I conceive of a case where an advanced legatee, no matter how largely advanced, would not gain by coming in with his advancements, to the detriment of the unadvanced legatees; and there seems to me to be as little warrant in the statute for denying any the right of bringing in their advancements, if they so elect, (as has been said might be done,) and of sequestrating their legacies for the use and benefit of the other children, as ‘for requiring any to bring them in, in defiance of the plain language of the law; that all the legatees or legacies (saying nothing about advancements) should contribute rata-bly,' to raise or make up the portion of the pretermitted child.

The cqnstruction given to the law by the chancellor, and which to me appears the plain and obvious one, is attended with none of these difficulties, and inconvenient if not absurd consequences. It gives a sensible meaning to and reconciles all parts of the statute with each *other, and avoids all the seeming conflict and repugnancy, by limiting and restraining the sense and effect of general words in one clause, by the specific and directory provisions in another. We have been taught by the legal commentators and sages of the law, that there are three points to be considered in the construction of remedial statutes — the old law, the mischief, and the remedy — and, moreover, that when the words of a law are dubious or uncertain, the most universal and effectual way of discovering the true-meaning is, by considering the reason and spirit of the rule. If we follow these guides, and employ these tests of construction, it seems to me, that no other conclusion is possible than that to which the chancellor arrived in’his brief but cogent and unanswerable opinion copied on the record. What then was the state of the law when the act of 1785 was passed? By it a- plenary testamentary power was given to every person deemed capable of exercising it, and when exercised according to the prescribed forms and solemnities of the law, no matter how capriciously or unjustly, no matter who were the objects of testamentary bounty, the act was valid — voluntas stat pro lege— but if any one chose not to exercise this testamentary power, and to die intestate, the law stepped in, and by the statute of descents and distributions disposed of his estate, real and personal; and in doing so, it adopted as its rule and guide the principle of equality.

To produce this equality there was incorporated in the statute the provision requiring advancements to be brought in, called the doctrine of hotchpot, borrowed from the English statute of distributions, which that statute had borrowed from the common law of descents, applicable originally in England only to lands given in frank marriage; a species of entail which were required to be brought in when lands descended in fee to parceners (who at common law were only females) before the donee in frank marriage could come into partition with her sisters. Until the Revisal of 1819, land and personalty were kept so wholly separate and *distinct, that a parcener was not bound to bring land into hotchpot to entitle him to claim his distributive share, nor a distributee to bring in an advancement of personalty, to entitle him to come in for an equal share in the partition of lands descended. By the Code of 1819 the two subjects were blended, and both lands and personalty required to be brought in, to entitle a child or descendant of an intestate to come into partition or distribution. We have seen, that as the law stood in 1785', it recognized the testamentary power in its most plenary extent, in every one deemed capable of exercising it, and where any one failed to exercise it, disposed of his estate according to the principles of equality, which we find incorporated in the statute of distributions -among- which is the prescription that those advanced in the lifetime, must bring in or account for their advancements, as a condition precedent to their right to come into distribution and partition.

But then there was found to exist a manifest defect, if not a casus omissus in the statute of wills, in failing to provide for the case of an after born pretermitted child, for whom no provision or settlement was made by a will made in favor of the children in esse at its date, or the death of the testator', as well as the case of a man dying leaving no children born, but his wife en-ciente, and leaving a will making po provision for the posthumous child. How did the statute remedy the mischief incident to the last case? Proceeding upon the hypothesis that the will was made in ignorance of a state of facts, which, had they been known to the testator, and supposing him possessed of the ordinary natural affections, would have prevented its execution, or have caused the execution of one in favor of the posthumous child, the statute wholly abrogates the will unless the child die unmarried or under twenty-one years of age. The will is allowed to have no effect during the life of the after born child, but if he should neither marry nor attain the age of twenty-one years, full effect is given to the will. Here the statute, ^placing itself in loco parentis, and exercising a provident forecast, and making provision for contingencies not contemplated by the natural parent, has only done what it is most natural to presume he would have done, had he foreseen the event — the birth of a posthumous child — and in so doing has applied a remedy exactly commensurate with the mischief; nothing more, nothing less. What remedy has the statute provided for the mischief in the case under consideration? Not by abrogating the will and creating an intestacy, (as they would have done, if they meant to adopt equality as their rule, as in case of actual intestacy in dealing with the mischief,) but by recognizing and permitting the will to stand, and providing that the pretermitted child shall he recompensed, by having such portion made up to him or her in ratable contributions by the legatees and devisees in the will, as he or she would have succeeded to, if the father had died intestate; meaning, as I interpret it, an equal portion of the estate of which the father died, seized and possessed, or to which he was entitled. Here, again, as in the case first mentioned, the Legislature interferes no farther with the will than to modify it, and make it conform to the presumed intent of the testator in the contingency, unforeseen to him, that has happened; and as it was impossible for the law-giver to speculate as to what provision the testator would have made, whether equal or unequal with those provided for in the will, from convenience, if not absolute necessity, the rule of equity was adopted, no matter how far it may have been departed from in the will made in favor of the children in esse, when made.

I think it cannot be seriously gainsayed or questioned, that the doctrine of advancements was inapplicable to a case of partial intestacy before made so by the Code of 1849, although all must admit, the words of the statute are just as general and sufficient, if not more so, to make it applicable to that case than the words of this law are to make it applicable to this; and ^whilst the counsel for the appellants assumes in his argument that this must be regarded as a case of partial intestacy, not in relation to the estate in the case first supposed, but in relation to the person, yet he has failed to assign any good reason why it should be any more applicable to a constructive partial intestacy as to the person, created by the law, than to an actual partial intestacy as to the estate, created by the failure of the testator to place it under the operation of the will. If properly held inapplicable to the first, I should say a fortiori is it so as to the last? I inquired of the counsel, upon his construction of the law, how he would dispose of a case combining the three features of a will, partial intestacy in fact as to a part of the estate, and the birth of a pretermitted and posthumous child; and I understood him as admitting, that it enhanced the difficulty of carrying out his construction to its results and consequences, but I did not exactly understand his scheme for overcoming the difficulty.

Now, upon my construction, there is not the least difficulty as to the property undis-posed of by the will — that is distributable under the general statute of distributions without the doctrine of hotchpot being applied — because it is a case of partial intestacy, and the posthumous child is entitled to her share as an after born distribu-tee, not under the section of the statute of wills we are now considering, but under the statute of distributions; and it is divisible equally irrespective of advancements in the life-time, or legacies and bequests in the will, or the provision made for the after born by the statute. If this be so, does it not add confirmation, if not demonstration, to the conclusion, that the object of the law was only to make the after born an equal participant in the estate, of which the father died, seized and possessed, or entitled to and disposed of by the will; for, as to that which he failed to dispose of, and as to which he died intestate, there was no necessity for any legislation, the after born being entitled to her equal share under the statute of distributions; and if *in claiming her distributive share as to this, she could not call for the application of the doctrine of hotchpot, why should she be allowed to do so, in reference to the share or portion given her by the act, in the estate disposed of by the will? I should say, if the right to claim advancements in the first case — that of making distribution of so much of the estate as was undisposed of by the will — does not exist, a fortiori does it not, as to that disposed of by the will?

It seems to me to be a legal solecism, to hold that the doctrine of hotchpot applies to a case like the present. By the very terms of the statute, it is only applicable between parceners and distributees, and its whole sole and exclusive purpose is, to produce equality among all the parceners and distributees. Here are no parceners, no distributees. On the one hand is the posthumous child, whom' the appellants’ counsel terms a constructive parcener or distributee; on the other, only legatees and devisees. So far from all being made to come in and rendered equal, it is only to be.applied as between the advanced legatee and the posthumous child; and so far from conducing to equality producing greater inequality. The law says the portion is to be raised by ratable contributions out of the legacies and bequests. The counsel for the appellants says, or in effect says, it is to be raised by contributions from legacies, bequests and advancements made in the life-time — nay, more, not only are the legacies and devises of the over advanced or just fully advanced legatees, sequestered for the benefit of the posthumous and un-advanced legatees; but if they would elect upon the principle of hotchpot, to come in and bring with them their advancements, as they would have the right to do, however great the folly and injustice of the act, they are to be denied that right, because it would enure to the benefit of the after born, by augmenting her share, and throw an additional burden upon the unadvanced legatee.

In view, then, of the old law, the mischief to be provided against, and this law enacted as the remedy; *in view of the fact that the will is not abrogated, but suffered to stand, and no intestacy, in fact created for the application of the doctrine of hotchpot — all the inequalities of the will, as between the original devisees and legatees, permitted to remain, and not one word said about advancements in the section; in view of what I regard as an undeniable proposition of law, that the principle of hotchpot was never applicable to a total testacy, or even partial intestacy, until the Code of 1849, (although by the letter of the statute of descents and distributions, its applicability might be urged with as much or more plausibility than to this case,) in view of the provision of the section requiring the portion to be raised or made up by the ratable contributions from the bequests and devises in the will, but saying nothing about advancements; can it be that we. are tied down to the letter of the first part of the section, and by the letter bound to interpret the Legislature as intending, by the use of the general terms employed, “as if the father had died intestate,” to place the posthumous issue upon higher ground than the children of whose existence he was cognizant, and for whom he made provision by his will, to give her more than an equal part of the estate of which he died possessed, or was entitled to at his death, by giving her a right to participate in advancements — a right denied to the living children and unadvanced legatees and devisees, although these devises and bequests were to be diminished by contribution and abatement in favor of the posthumous child?

In my opinion, we cannot so hold without disregarding the reason and spirit of the law, and without doing even more violence to its letter, taking the whole sec-' tion together, than is done by the construction contended for by the appellees; and without encountering effects and consequences most inconvenient and unjust, if not too preposterous and absurd to result from a legitimate construction of the law. With all due deference and respect for the opinions of *those who differ with me, I think the plain and obvious intent, and meaning of the statute, was to limit and confine the posthumous and pretermitted child to an equal portion of the estate to which the father was .entitled at his death, if disposed of by will, to be raised by ratable contributions from the bequests and devises according to the section of the statute of wills under consideration ; and as to so much as was not willed she was entitled to her equal share, irrespective of advancements or legacies under the statute of distributions. And I think the mistake of those who maintain a different opinion, has arisen from their giving to the general terms used in the first part of the section, “as if the father had died intestate,” (terms, in my view, employed by the Legislature only to indicate an intention to give an equal pa.rt of what the father was seized and possessed and disposed of by his will,) the same meaning and the same effect they would bear and have in case of an actual absolute intestacy; whereas, in this case there is no actual intestacy, or intestacy in fact, either, partial or total, but, on the contrary, a total testacy and its existence recognized by the law itself, and provision made upon the hypothesis of its continuing validity, by requiring the legatees and devisees to raise the portion of the after born by ratable contributions out of their several bequests. These are my reasons for concurring in opinion with the chancellor and for affirming his decree.

On the Re-hearing,

THOMPSON, J.,

said:

I have listened with pleasure and attention to the argument addressed to us on the re-hearing. The views submitted by the counsel of the appellant are plausible and ingenious, but they have not weakened or shaken in the least the firm conviction fastened upon my mind upon the first hearing. I adhere to the opinion then expressed, with undiminished confidence in its rectitude, upon general principles, and the plain and reasonable rules of construction, in the absence of any pertinent ^decisions or authorities to guide or govern us. And my confidence is not a little confirmed and strengthened by the legislative declaration or interpretation of the law under consideration, contained in the act of the 21st February, 1840, (Sess. Acts 1839-40, c. 56, § 3, p. 49,) cited by the counsel of the appellees, providing that all the estate to which a posthumous child may be entitled, under the provisions of the law we are considering, and which shall not have been expended in his or her support and education, “shall revert to the persons to whom such estate may have been devised or bequeathed by the will of such testator;” shewing, as I think, unmistakably, that the Legislature which passed that law understood the provision of the posthumous child under the act of 1785, to be limited and confined to the estate devised and bequeathed by the will. And although this does not profess to be, and may not be regarded as properly a declaratory law, giving a legislative exposition of the act of 1785, obligatory upon the courts in cases arising even subsequently to its enactment, much less to cases which arise (asdid this) before its passage; yet, as the opinion of the law-making power of the State, it is entitled to the respectful consideration of the law-expounding power. For that purpose only I understand the counsel of the appellees as citing it. With a like view have I referred to it for the purpose of relying on this concurrence of opinion as sustaining and corroborating my own construction of the statute.

CLOPTON, J.

John Macon, by deed executed on the 10th of November, 1787, and recorded on the 9th of June, 1788, made advancements to his two daughters, Caty Todd Macon and Martha Todd Macon, to take effect at his death. He died in l793, and by his will, dated on the 9th of February, 1793, and a codicil thereto dated on the ist of March, 1793, after making provision for his wife during her life, he disposed of his entire estate, real and personal, to his son and his four daughters, including those to whom he had made advancements. *He died leaving his wife enciente, and a posthumous child (the plaintiff Ann) was born, for whom no provision was made by the will or otherwise; nor was she disinherited; she was only pre-termitted. The devisees and legatees in the will contributed to the plaintiff Ann pro-portionably, so as to make up to her one-sixth part of the estate devised and bequeathed to them directly by the will (but not taking into the estimate the advancements which had been made to the two daughters). To the raising of this portion, the widow contributed nothing. Subsequently this suit was instituted by the plaintiff Ann, by Thomas Miller, her guardian, against the widow of the testator and her second husband, Archibald Free-land, seeking contribution from them out of the estate devised by the will of John Macon to Mrs. Freeland for life, and making Freeland and wife, only, parties. Nothing seems to have been done in the case until after the marriage of the plaintiff Ann with the plaintiff Daniel A. Wilson, when the suit was revived in their names, and then in January, 1817, the plaintiffs filed an amended bill, making the brother and the four sisters of the female plaintiff, and the husbands of the sisters, defendants, and praying that the advancements made to the two daughters, as they had accepted and received the estate devised and bequeathed to them by the will, should be brought into account, and thus the portion of the plaintiff Ann increased beyond what she had received. Upon the hearing, the amended bill was dismissed, without disposing of the original bill, and from that decree this appeal allowed.

The question involved in the case is this: Is the posthumous child, who is wholly pre-termitted by the father’s will, and is not otherwise provided for, entitled to have the advancements made to the devisees and legatees in the will, taken into the estimate of the father’s estate, if they claim the devises and legacies in the will? And the solution of this question depends upon the proper construction of the last clause of the third section *of the act of 1785, “concerning wills, distributions of intestates’ estates,” &c., which is in the following words: ‘ When a testator shall leave children born, and his wife enciente, the posthumous child or children, if neither be unprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father’s estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.” And of the last clause of the twenty-fifth section of the same act, in these words: ‘1 Where any children of the intestate, or their issue, shall have received from the intestate, in his life-time, any personal estate by way of advancement, and shall choose to come into the distribution with the cher persons entitled, such advancement shall be brought into hotchpot with the distributable surplus.” See 12 Henning’s Statutes at Large, pages 140, 146.

!l By the third section it is enacted, that the posthumous child shall succeed to the ^jame portion of the father’s estate as such ¿hild would have been entitled to if the father had died intestate. It is necessary, then, to ascertain the proper meaning and Import of the words, “father’s estate.” Does such estate include advancements inade to children? or is it limited to what the father died possessed of?

1 Advancements made by a father to his children can not be regarded as his estate in any aspect, unless it may be so regarded, in a case of hotchpot under the twenty-fifth section. The doctrine of hotchpot is the creature of, and depends entirely upon, the statute of distributions; and the principle of the doctrine has been progressive. At one time it did not extend to the “issue of children.” Until the revisal of 1819, it did not extend so far as to blend real with .personal estate. Until then, a child 1? who had received advancement in *lands was not required to bring them into hotchpot to entitle him to jan equal distributive share of the personal upstate; and it has at no time extended to (Collateral distributees, and is still limited (to descendants of the intestate. The enactment is, that children who have received advancements shall not come into partition without bringing the advancements into hotchpot, and when brought in, the aggregate is to be divided equally between all the distributees; the principle of equality, or an approximation towards it, being the only one the Legislature could adopt, if they made any rule at all. This does make the advancements a part of the father’s estate descended, but only a part of the aggregate for the purpose of equal distribution, when they have been brought into hotchpot by those who received them; for the principle is, that all who participate in the distribution shall receive equally. Does or can this principle apply to a posthumous pretermitted child provided for by the third section? And if it does apply, must not the whole principle apply? In cases of partial intestacy, where the testator disposes of part only of his estate, and leaves the residue undisposed of, it is settled that the doctrine of hotchpot does not apply, because it will vary the dispositions of the will, and revoke it pro tanto. Walton v. Walton, 14 Ves. jr. 318, and Snelgrove et als. v. Snelgrove et als., 4 Dessaussttre, 274. The third section not only ascertains the portion of the posthumous pretermitted child, but also how it shall be raised. It does not give such child a right to equal distribution of the property itself in kind, but declares that “towards the raising which portion the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.” This in nowise revokes the will, but leaves it in full force as between the devisees and legatees, subject only to the ratable abatement necessary to raise the portion of the posthumous child; and when this abatement is made, each devisee and legatee takes the residue of the devise and legacy. They cannot claim *to take upon the principle of equality, either with each other or with the posthumous child. And if any of them have received advancements, they cannot be required to surrender that residue, at least for the benefit of the other devisees and legatees who have received no advancements, by contributing more towards raising the portion of the posthumous child than the others, for the contribution must be proportional to the devises and legacies in the same will and testament. Could it, then, have been the Legislative intention that the advancements should be estimated for the purpose of ascertaining the portion of the posthumous child, and thus increasing the inequality between the devisees and legatees? The proposition assumes such inequality to exist. Were such, however, clearly the Legislative will, it must be carried out. But the doctrine of hotchpot, in its terms, applies only to actual intestacy, and does not apply to.partial intestacy; and is this any other than a case of constructive partial intestacy, created by law for a specific object, not indeed as to subjects of property, but the person to take? In construing statutes, it is a leading rule to give that construction, if it can with propriety be done, which will give effect to the whole. There can be no doubt about the manner in which the portion of the posthumous child is to be raised, that is to say, by ratable contribution by the devisees and legatees in the same will and testament. The only ambiguity supposed to exist is in the words, “father’s estate,” or in their meaning and import, as used in the clause under consideration. A man’s estate, in its ordinary and legal acceptation, is that which he can dispose of at his pleasure; and, in the case of a testator, that which he is possessed of and may dispose of absolutely by his will. To give it this meaning, in this clause, satisfies the statute, and leaves the other branch to operate. There can, therefore, be no propriety, as there is no necessity, to give it that enlarged meaning which would include what by another section of the law, providing *for a distinct object, may be considered quasi his estate. I am, therefore, of opinion, that the Legislature used the words “father’s estate,” in their plain and obvious, and not in any enlarged constructive sense. That while their purpose was to make provision for the posthumous child, they intended to lea-ve the inequalities, if any existed, as the testator had determined them, subjecting the devises and legacies to that ratable abatement only, necessary to raise the portion of the posthumous child. Farther than this, the3r did not intend to disturb the will, much less to abrogate it; and they have not so done, if I am right in my construction, that the phrase “father’s estate” means estate of which he died possessed. Therefore, the devisees and legatees who have been advanced cannot be required to bring their advancements into account.

An objection was taken to the regularity of the proceeding in. dismissing the amended bill without disposing of the whole case. This case came on with others, to be heard, by consent of the plaintiffs and the defendants, Thomas Miller and wife and William Miller and wife (the parties sought to be charged with the advancements), as between those parties, upon the pleadings between them, and in addition to this, the amended bill was between different parties and for different objects from those of the original, and might be properly disposed of as it was, without considering the original bill.

I am of opinion to affirm the decree.

CLOPTON, J.,

on the re-hearing. I concurred in granting the re-hearing of this case, because, although the question in it arises under the Act of 1785, it has never received the decision of the Court of Appeals, and as it was decided here by a bare majority of the Court, it could not be considered as free from all doubt. I was, therefore, willing to review my own reasoning, that if error existed in the conclusion to which it led me, I might detect it. With this view I have examined the authorities referred to in the second argument, and, *having considered them in connection with the discussion on the first hearing, I am unable to perceive any fallacy in the reasoning which conducted me to the conclusion I adopted. Indeed, subsequent reflection has fortified that conclusion.

Having already discussed the question at some length, I do not deem it necessary to add more than a few remarks.

It is conceded that the posthumous child is entitled to “succeed to the same portion of the father’s estate, as such child would have been entitled to, if the father had died intestate,” and I think it must also be admitted, that the value of advancements made by the father to one of his children, canrot, in any view or for any purpose, be considered a part of the father’s estate, until, by such child’s choosing- “to come into the distribution with the other persons entitled, the advancements shall have been brought into hotchpot with the distributable surplus.’ And when also brought in, what is the effect, and what the purpose intended by the law? The effect is not only to add the value of the advancement to the estate descended from the father, but to entitle the child bringing it in, to an equal distribution of the augmented amount with the other persons entitled. This, it would seem, he is clearly entitled to, if he comes in; and if he does not so choose, he can never be entitled to any other portion of the father’s estate, for the plain mandate of the law is, that he shall bring in the advancement and receive an equal distributive share of the whole; or, contenting himself with the advancement made to him, he shall receive no part of the residue. Here it may not be inappropriate to remark, that the language of the law is, “such advancement shall be brought into hotchpot with the distributable surplus.” This phrase, descriptive of that to which the advancement is to be added, seems to refer to and to include, only that which passed by operation of law to those entitled, to be ■disposed of by distribution among them, according to law. But in this case, *the will of the father disposed of the entire estate he possessed at the time of his death; there was no such “distributable surplus.” All passed by the will, and nothing by operation of law merely, except that the law makes provision for the posthumous child, and the extent of that provision is the subject of enquiry.

We have already seen that the doctrine of hotchpot did not apply to cases of partial intestacy, and if it be true that, in a case to which the doctrine of hotchpot applies, the child who has received án advancement must either bring it in, or be excluded from the distribution; then that doctrine cannot be applicable to the case of a will, where the estate passes by the will, in devises and legacies, and not by operation of law in distributive shares; for it has not been contended that the birth of a posthumous child revokes the will (where there are children), and I think it cannot be successfully contended, that such birth has any other effect, than to abate the devises and legacies proportionably, to raise the portion of the posthumous child, whatever that may be; the express language of the law being, “towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament” — language which imports that the devises and legacies shall be abated proportionably to raise the whole portion, and not a part of it only. Suppose a case in which one child has received advancements, and is also a legatee in the will of the father, with three others, (the father having four children at the time of his death, leaving his wife enciente at the time of his death,) and a posthumous child is born.

If to this case the law of hotchpot applies, that law gives to the advanced legatee the right to bring in his advancement or not, a right to be regulated and controlled bj' his mere volition ; and if, in the exercise of this right, he determines to bring in his advancement, then the portion of the posthumous child would be a fifth part, or twenty per cent, of the whole estate descended *from the father, augmented by the advancement brought in, towards raising which the un-advanced legatees would contribute one-fifth part, or twenty per cent, of their respective legacies; and the advanced legatee would contribute one-fifth part, or twenty per cent, of his legacy, and of the advancement which he had brought in. But if the advanced child chooses not to bring in his advancement, then, upon the principle of hotchpot, he would be excluded from the computation in ascertaining the aliquot parts, and the portion of the posthumous child would be a fourth part, or twenty-five per cent, of the. property disposed of by the will (but not increased by the advancement), to be raised proportion-ably from the devises and legacies in the will, and this would require a contribution from each legacy of one-fourth part, or twenty-five per cent. of the amount (whether the legacies were equal or not), including the legacy to the advanced child; thus imposing on the respective legacies of the unadvanced legatees, a contribution of twenty-five instead of twenty per cent., and subjecting the legatees to the loss of five per cent, of their respective legacies, by excluding the advanced child from the computation. When, in either of these cases, the portion of the posthumous child shall have been raised, what disposition is to be made, in the first, of the residue of the legacy to the advanced child, and of the advancement which he had brought in: or, in the second, of the remaining three-fourths of the legacy to the advanced child? No part of this residue, in either case, can belong to the posthumous child, who has received one full equal share of the whole estate, upon the principles supposed to be applicable to each case, and it cannot belong to the other legatees, who can only claim their legacies under the will, subject to such proportionable contribution as was (in either of the supposed cases) required towards raising the portion of the posthumous child; for, as the will is not revoked, it must operate, as between the legatees, in full force, except as to the contribution necessary towards raising *the portion of the posthumous child. If I am right in the opinion, that neither the posthumous child nor the other legatees are entitled to any part of this residue, in either case, it must, of necessity,' belong to the legatee who had been advanced, and that legatee will be entitled to come in and take it. And the inevitable effect would be, to enable the advanced legatee to keep his whole advancement, by refusing to bring it in; and also' to take his legacy, subject only to an additionál contribution of five per cent. ; an increase, also, imposed upon the other legacies. As ' it is not a principle of the law of hotchpot that a child who has received advancements, may refuse to bring them in, and, notwithstanding, be entitled to claim and receive some portion of the father’s estate, the doctrine; therefore, is not applicable, because the advanced legatee can neither be compelled to bring in his advancement, nor be excluded from all participation in the estate disposed of by the will; and, also, because it imposes an additional burthen upon the unadvianced legatees, and thus increases the inequalities (if any) made by the will. And there is no escape from this consequence.

The proposition that the law of hotchpot is applicable, necessarily implies, that the posthumous child will be entitled to a portion, greater in value, than if if is not applicable, which results must be produced in one of two ways: either by augmenting the fund to be divided, or diminishing the number of those among whom it is to be divided; but in whichever way the increment is made, it must bq. taken '.from some source, thé burthen mus't,.be-tjirown upon some one or more; and if the portion of the posthumous child be enlarged, by diminishing the number of those among whom the division is'to be made, then the unkdvahced legatees must be subjected to a larger contribution and consequent loss, or the whole of the increase must be thrown upon the advanced legatee, to their - exoneration. For such a construction, I do not think the law furnishes any warrant; ' indeed, it seems a plain violation of the principle fixed *by the law, that “theleg-ateeis shall' contribute proportionably out of.the parts devised and bequeathed to them,” towards raising the portion of the pos.thumous child.

TYLER, J.

The only- question in this case is, whether or not the statutory provision respecting advancements applies to cases of testacy, in the event of’the birth of a posthumous child, unprovided for ' by settlement, and neither provided for nor disinherited, but only, pretermitted. This provision is limited in terms, by the statute which creates it, to the case of “a person dying intestate;” and it provides, that where any of the children of a person dying intestate shall have received from such intestate any estate by way of advancement, and shall choose to come into partition and distribution of the estate •with the other parceners and distributees, such advancement shall be brought into hdtchpot' with the whole estate descended, and such party returning such advancement shall be entitled to his proper portion of the whole estate so' descended.

The object of this provision was, and its effect is, in the appropriate application of this principle, to produce equality in the partition and distribution of intestates’ estates. Equality, then, being the object of the law, it follows, necessarily, that whenever this provision is applicable, the party bringing in the advancement must come into- partition and distribution, and be entitled (in the case of a child) to an equal portion of the estate with the rest of the children. When, therefore, by reason of a will the principle of equality is abrogated, so that the party advanced, by returning the advancement, cannot come into partition and distribution with parceners and distributees, and cannot take his equal portion of the estate with the rest of the children, but is compelled to take what is left him by the will, be it little or much, on no principle of rea'son or justice, and certainly not by the terms of the statute, can he be called on to return the advancements as a condition precedent to his receiving his legacy.

*It is argued, however, that the statute providing for posthumous children applies this provision of the law, by necessary implication, to cases of testacy and the birth of a posthumous child. The language of that statute isas follows: “If a testator shall leave children born and his wife enciente, the posthumous child, if it be unprovided for by settlement, and be neither provided for nor- disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father’s estate as such child would have been entitled to if the father had died intestate; and for raising its portion the devisees and legatees shall contribute pro-portionably out of the parts devised and bequeathed to them.” In the cabe, then, of actual intestacy, the posthumous child comes into partition and distribution with the other parceners and distributees, with the law of hotchpot limiting and controlling the distribution of the intestate’s estate; and there being in such case no testamentary disposition of the property in the way of the law, it declares that as a condition precedent to the receipt by the advanced child of any part of the father’s estate, that as he shall add to the father’s estate the amount advanced, and, by so doing, shall come into equal partition and distribution, not only of the father’s estate, but of the amount of advancement returned. But in cases of testacy, and the birth of a posthumous child, the posthumous child itself not being able to come into partition, cannot call on any other child to act on that principle. • The posthumous child’s portion of the father’s estate is ascertained by treating the father as having died intestate, and when ascertained, is paid by contribution ; it being impossible to apply the provision in reference to advancements in cases of testacy, without setting aside the will in toto. Eor, in the case of a will, there are not parceners and distributees to come into hotchpot, but devisees and legatees; and as the posthumous child, in case of a will, never comes itself into partition, it can never call on any one else to come in. To illustrate this view, *let us take the case of a testator who has three children born, A, B and C. He advances A $1,000 and B $1,000. He dies possessed of an estate of $20,000, and by his will he disposes of that estate as follows: to A $2,000, to B $2,000, and to C $16,000. A posthumous child is born. According' to my view of the law, the testator is to be considered as having died intestate as to the $20,000, which is all his estate, and the posthumous child succeeds to a child’s portion of the father’s estate, which is $5,000, or one-fourth of $20,000, there being four children; and its portion is raised by A contributing $500, B $500, and C $4,000. Heaving A $1,500, B $1,500, and C $12,000. How, now, is it possible to apply the doctrine of hotchpot to this case? If the posthumous child says to A and B, you must return your advancements and come into hotchpot before you can receive }7our legacy of $2,000, the answer to the demand is, ‘ ‘there is nobody to come into hotchpot with.” The posthumous child invites A and B into hotchpot, but with whom? He can’t come in; his portion is made up by contribution; C is a devisee entitled to $12,000 after contribution, and there is no one else. Can the posthumous child, then, either by the terms of the statute, or consistently with fair dealing, ask A and B to bring in their advancements for the purpose of increasing the fund, in order that he shall succeed, not only to such portion of the father’s estate as if he had died intestate, to be made up out of A, B and C’s legacies, but also to a portion of A and B’s advancement, when his portion will be more than double A and B’s legacy and advancement added together, and when, after they are brought into hotchpot, he is to get more than he is entitled to, and the advanced children less? Surely this cannot be, as it is argued, the operation of the doctrine of hotchpot. If it is, I am certainly a stranger to it.

I am, therefore, for affirming the decree with costs. The amended bill brought parties before the court who were not liable to the demand of the plaintiff, and it *was property dismissed. There has been no action on the original bill, and there is, therefore, nothing before this court in reference to it.

GILMER, J.

The original bill in this cause was filed by Ann Macon, to recover from the legatees and devisees of John Macon, deceased, her share in his estate, she being a pretermitted posthumous child. The testator, in his life-time, had made advancements to his daughters Catharine Miller and Martha Miller, of which no mention is made in the original bill. The plaintiff afterwards married Daniel A. Wilson, and he and said Ann filed an amended and supplemental bill, the object of which was to make new parties, and to have an account taken of said advancements, in order to ascertain the share of said Ann in her father’s estate. Answers were filed to | the original and amended bills, and Chancellor Taylor, on the hearing, dismissed the amended bill, being of opinion, that the plaintiffs were not entitled to an account of the advancements.

The only question now submitted to this court is, Whether or not the Chancellor erred in that decree? And that depends on the construction to be given to the statute, providing for pretermitted posthumous children, which is in these words: “When a testator shall leave children born and his wife enciente, the posthumous child or children, if it be unprovided for by settlement,, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the samé portion of the father’s estate as such child would have been entitled to, if the father had died intestate; toward raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament.”

If the Legislature had not pointed out any particular mode, of raising the portion of the posthumous child, and had merely provided that such child, should succeed to the same portion of the father’s estate, as if he had ’x'died intestate, it is conceived there would be little difficult}7 in deciding the question; for it would be hard to escape from the direct and positive mandate of the law. If a father dies intestate, having advanced his children in his life-time, and a posthumous child is born, that child must inevitably (as between it and the other children) inherit either the whole of the estate undisposed of by' the father in his life-time, or an equal portion of such estate, and the portions advanced to the other children brought into hotchpot with it. This is admitted by all. What, then, did the Legislature mean by providing that if the father left a will, his posthumous child should succeed to the same portion of his estate, as if he had died intestate? I answer, it meant to place such child in the same condition, to all intents and purposes, as if he had died intestate. But it is argued, that advancements made by the father, constitute no part of his estate, that the title, by the gifts from the father, is vested in the donees; and this is certainly true, as between the donor and donee.' But if the father, by his will, should dispose of one of these advancements, and make a devise or bequest to one child advanced, and that child should elect to claim under the will, no one will deny that he must submit to the disposition of the advancement made by the will, though he might have refused to take under the will and have retained his advancement. And in this case, it is admitted that the defendants might have retained their advancements, had they not claimed any part of the estate under the will of the testator; but-having done so, and having received a portion of the testator’s estate under the will, and thus, to this extent, disappointed the plaintiffs, they stand in the same predicament, as if the testator had died intestate, as to that part of his estate not disposed of by advancements, and they had elected to take their respective portions of it.

I am of opinion, that the testator, for the purpose of carrying out the legislative intent, should be regarded as having died intestate. It is true the Legislature, in *a case like this, has not declared that the will shall be revoked in terms, but as to the posthumous child, the will is wholly disregarded, and without this it could not get any portion of the estate. .

The Chancellor seems to have relied much upon the ground, that the plaintiffs could not compel the defendants to bring their advancements into hotchpot. But the true question in this case is, not whether the plaintiffs could have compelled them originally to do so, but whether the court will now compel them, after they have elected to claim their portions of the estate devised and bequeathed by the will, and have actually received them. It is begging the question to say, that the property advanced by the father to his children is no part of his estate. In case of intestacy, if the children advanced bring'into hotchpot their advancements, they are indiscriminately mixed with the estate of the intestate, and all divided among his heirs and distributees; the whole is divided as his estate, according to the law of descents and distributions. And if this be so, why may not the advancements be considered in the same light in this case? In either case, if the children advanced can be compelled to bring them into the division, they then become alike, a portion of the estate of the father, and the only title on which the posthumous child can stand, is that by descent, to his distributable share of his father’s estate. I do not mean to say, that the property advanced is in specie brought into hotchpot, but the value of it, and to that extent the dividend is increased, and under the law divided as the father’s estate.

But it is argued, that if all this be true, the last part of the sentence controls the first part, and points out the fund, and the only fund, from which the portion of the posthumous child shall be raised. Suppose, for the sake of argument, this be admitted. There can be no doubt that the words “which portion,” in the latter part of the sentence, refer to the portion described and designated in the first part, and that is the same portion to which the child would be entitled in case of intestacy; *and if the advancements in case of intestacy are to be considered as part of the intestate’s estate, for the purpose of making up the portion of the posthumous child, it is difficult to perceive why they may not be so considered for effecting a similar purpose in a case like this.

It does not necessarily follow, that advancements are excluded, because the dev-isees and legatees are to contribute ratably out of their devises and bequests. This : may be done, and the advancements may still be accounted for.

I am confirmed in this view of the construction of the statute, by the belief, that it would do justice to a class which the Legislature (for good reasons) has taken under its protection, and would secure to them, such portions of their inheritance, as just fathers would desire they should enjoy; and I cannot believe that a just Leg- . islature, or a just parent, would desire that a pretermitted posthumous ' child, should share equally, with nine brothers and sisters, all of whom had received an equal tenth part of their father’s estate, the remaining tenth only.

There is no class of cases, in which the courts in England and in this country, have gone further than in giving to wills a liberal construction, for the purpose of carrying out the intention of the testator. Words, and even sentences, are stricken out and disregarded, or interpolated, as may be necessary, for carrying out this cardinal rule of construction. It is always presumed (in the absence of all proof to the contrary) that a parent desires his children to inherit equal portions of his property; and hence, when one dies intestate, the law disposes of his property equally among them. So, if he dies intestate, a preter-mitted posthumous child will be entitled, in case he has made advancements to other children, either to all the remainder, or to an equal share of that, and the advancements brought into hotchpot. Why was this provision made? The answer is obvious: to put all the children on an equality, as far as *is, practicable; because it is not just or fair, for one : who has already got a share of a common fund, to which he had no better right, and as to which he stood on no better footing, than his brothers and sisters, to retain all that he has, and to take an equal share of the remainder. By doing so, he may produce inequality; nothing more. And is it to be presumed, that the Legislature which passed these laws, and for the purpose above mentioned, made advancements a part of the estate of an intestate, intended that they should not be so considered in a case like this, in which a will was made by a testator, in total ignorance of the condition of his wife at the time of his death? In the case of Callaway, &c. v. Langhorne and wife, 4 Rand. 181, the Court of Appeals decided that a sum of money which the testator in that case, had bequeathed to one of his children, should be taken into the general estimate, although not embraced by the language of the will, because the court was satisfied, that equality was intended by the testator, though he did not so express himself as to include the money. And I can see no good reason why advancements in this case, may not be considered a part of the testator’s estate, as to the pretermitted posthumous child, to produce equality, and to carry out what I believe to have been the intention of the Legislature; for whatever may be the effect, in other cases which may be supposed, there can be little doubt this is one, in which inequality will be produced, by the construction contended for by the appellees. For these reasons, I am for reversing the decree.

GILMER, J.,

on the re-hearing. This case has been re-argued with much earnestness and ability on both sides, and I have re-considered the question involved with the care and anxiety which its novelty and importance seem to demand, aided by the light thrown upon it by the last argument. I confess that many difficulties have been suggested by the counsel for the appellees, in carrying into effect the construction put on the statute *'by the minority of the Court; but most, if not all, of them have been raised by supposing extreme cases that may -never occur, and none has been shewn in the case now to be decided, and none in a case in all its circumstances like it; for if such a case were supposed, nothing could be gained in the argument by the illustration.

The appellants’ counsel, by way of illustrating his view of the statute, supposed a case of this sort: that a man who had precisely the same number of children, the same property, as the testator in this case, and who had made to his living children precisely the same advancements, had died intestate, and a posthumous child had been born, as in this case; the law providing that the posthumous child of the man who dies testate shall have the same portion of his father’s estate as if he had died intestate ; yet, by the construction placed on the statute by the appellees, the posthumous child of the testate father could, in no way, by no possibility, get the same portion as the child of the intestate father — so that part of the statute is made wholly inoperative and unmeaning. It is said that advancements are no part of the father’s estate — -but that, if true, and if an answer to the argument, is an answer in one view only, and that is, in case the advanced children claim, and in case of intestacy. Suppose, in case of intestacy, the advanced children do not claim — what portion of the father’s estate, then, does the posthumous child take? All that is left by his father. No one will deny that this is the father’s estate. But here no advancements are brought in at all; there is no question, no dispute as to that being the father’s estate, which he did not give away in his life-time, or dispose of in any way, but died seized and possessed of; no one can deny that in this event, that is, where the advanced children of the intestate father do not come into hotchpot, the posthumous child of the testate father does not get the same portion of his estate, as the posthumous child of the intestate father. Suppose they do choose to bring in their advancements; it is equally plain, he will not get *the same share in that case; so that, in no case that can occur, will he get the same share, and is not, then,' this important part of the statute utterly unmeaning?

I understand the rule in construing statutes to be, that all their parts shall be taken together, and that each part shall have its proper meaning and effect; but by tlie construction contended for by the appellees, not only is a part of the statute disregarded, but the most material and essential part— that part which gives the right and confers the benefit, is to be disregarded, because it is suggested, that there may be difficulties in working out the details — it is to be emasculated, to make it work easy.

If the legislature had intended what the appellees contend for, the first part of the statute would have been wholly unnecessary, and instead of mentioning the father’s estate, it would only have been necessary to provide, that the devisees and legatees should, by contribution, raise for the posthumous child a proportionable part of the property devised and bequeathed to them by the will of their father. If the object was, as the appellees’ counsel contends, to limit the posthumous child, in all cases, to a provision out of the property devised and bequeathed; whence the necessity of mentioning a case of intestacy, when, as already attempted to be shewn, the law of intestacy can in no event apply, according to the construction contended for by the appellees?

The first question, and the most important question in this case, is, what is the posthumous child to have? not, how shall that portion be raised? Let the portion first be ascertained, and then let the means of raising it be looked to; and let both be done according to the statute, if possible; but if that cannot be done, then it would seem better to modify and vary from, the form, than from the substance. I confess, however, that, in this case, I have not seen any necessity for either.

In a case of testacy, if the advanced children claim no part of the devises and bequests, then the posthumous *child would get all, and that is exactly what he would get in case of intestacy, if the advanced children did not come into hotchpot.

If, in a case of testacy, the advanced children claim their devises and bequests, then it would only be necessary to ascertain, by an account, what the posthumous child would have been entitled to in case of intestacy, if the advanced children claimed their share of the intestate’s estate, and require this to be made up by the devisees, and legatees, whether by literally and technically bringing their advancements into hotchpot or not, I think is immaterial. By this construction of the statute, every part has full force and effect, and no injustice, so far as I can see, will be done to any; and until it can be shewn that the posthumous child, by this construction, gets more of the father’s estate than he would have got in case he had died intestate, then he has not got more than the law allows him.

A liberal or a narrow construction should be given to a statute, as may be necessary to carry out the legislative intent, and to effect the purposes of justice; but, in this case, the narrow construction put upon the words “father’s estate,” is calculated to defeat both these objects. ■

I am at a loss to see for what purpose, such a construction is put upon those words in this case. It has not been argued, even, that it is necessary for the purposes of justice, and to produce equality among the children, but it has been contended, that it is necessary to carry out the intention of the Legislature.

It Is only necessary to push the argument one step further, to deprive the posthumous child of everything — he is to have such a portion “of the father’s estate,” &c. ; his father is dead; he gave away a portion of his estate in his life-time, and delivered possession of the personalty, and conveyed by deed title to the realty, to the donees; before-his death he made and published his -last.,will and testament, in solemn form, disposing of all the residue of .his estate, real and personal; now if a literal ^'construction is to be placed on the words “fatner’s estate,” it will be readily seen that he can have no estate; he is-dead, and all his property is vested in others, so that the posthumous child can •get nothing. Q. EJ. D.

-How absurd would this be! and why? Because it defeats the plain legislative intention, by a literal and narrow construction. The property devised and bequeathed by -the will, is no.more the father’s estate after- his death, than the property given to his children as advancements, after it is delivered to them.

. Under the circumstances of this case, differing (as I do) from a majority of the Court, I cannot be very confident of the - correctness of my conclusions on the construction of the statute; but I am confident, that i-t is the most just construction; and I am equally confident that many instances can.be shewn, in which the Court of Appeals has given a more liberal construction to statutes, than is contended for by the -appellants in this case, to prevent injustice from, being done.

Such has been the crudeness and redundancy of our legislation, that statute upon statute has been passed, from year to year, either in ignorance or in disregard of the existing statutes on the same subject, until it became necessary, that the best legal talents .of the State, should be employed for years to bring the chaotic mass into some form; and this state of things, has forced upon .the judiciary, the necessity of apply- 1 ing the principles of .common sense and justice, in their construction, which often could no.t be well reconciled with the language of the statute. Our reported cases, both civil and criminal, abound with such instances, familiar to us all. This discretion is absolutely necessary for the purposes of justice; and, so long as it is confined within the bounds of a sound legal discretion,- there can be no objection to its exercise. If I have departed from the mere letter of the statute in this case, it has been for the purpose of carrying out what I believe to be its true spirit and meaning, and to effect the great purposes of ^justice. When these are clear, I shall follow them, over whatever doubts and ambiguities their light may lead me.

FIELD, P.,

on the re-hearing. I have heard, with pleasure, the re-argument of this cause by the two able counsel who engaged in the discussion, and with an increased interest and pleasure, from the belief that each gentleman, whilst zealously discharging his professional duty, was endeavoring, with all the powers of his mind and eloquence, to enforce the candid and thorough convictions of his own understanding upon the question before us. Upon their arguments we have bestowed, willingly, the most mature reflection and consideration — yet, because some of us see through the glass, as it were, darkly, we remain of the same opinion still — and although I will not presume to impute error of opinion to any of my brother judges who differ from me, yet with-no intentional disrespect to theirs, I wish to say something in vindication of my own.

In the opinion heretofore delivered by me, I remarked substantially “that until we should ascertain-the portion of a preter-mitted posthumous child in the father’s estate, we must lose sight of the will.” The law under consideration prescribes that the child shall have “the same portion of the father’s estate as it would have been entitled to if the father had died intestate.” Whatever may be the real fact, as to whether the testator made a will disposing of.his whole estate, which is an absolute intestacy, and in which case the doctrine of bringing advancements into hotchpot applies, or whether he made a will disposing of part onty of his estate, which is a partial intestacy, and to which the doctrines of hotch-pot do not apply, (as the law was until our Code of 1849 took effect,) is a matter wholly immaterial in this case; because in all cases, in which a pretermitted child has a right to claim a portion of his father’s estate under the law, that portion is to be ascertained, as if the father had died intestate, ^(meaning an absolute intestacy; not partial,) and therefore whether the testator died partially intestate or otherwise, the claim of the posthumous child is to be ascertained, as if he had died intestate absolutely — a consequence of ■which is; to made the doctrine of advancements and hotchpot applicable to the case. The fact is, however, that the testator, John Macon, disposed of his whole estate by a residuary clause in favor of-his son Robert and his four daughters, and left nothing undisposed of by will; so that there can be no reason whatever, why the discussion of this case, should be influenced by any considerations of a supposed partial intestacy.

The operation of the law in this case, does not revoke the will of the testator, nor is its force or effect to be at all changed or modified. On the contrary, the validity of the will ip fully recognized, and each dev-' isee and legatee will be entitled to take, in kind, the specific article devised or bequeathed to him; but is to take, subject to that provision in the law, which subjects him to a pro rata contribution towards raising the portion of the posthumous child. In this way the value of the devises and bequests will be diminished, but without in anywise revoking or modifying the will, or impairing the force and effect of its provisions. There’is no inconsistency nor contradiction, and surely nothing illegal therefore, in permitting a legatee to take the full amount of his bequest under the will, although in ascertaining the posthumous child’s portion, he may have stood off with a large advancement, and been considered as excluded, because the 1 advancement was not' brought into hotchpot. 1

Much stress has been placed on the words “the father’s estate,” found in the law. These words were necessarily placed there, to give sense and meaning to the sentence. They were not inserted to inhibit the raising of the portion out of property, that did not belong to the father. What other but the father’s property could be taken for the purpose? then where *was the necessity for, or the propriety in using restraining words, to limit the operation o.f the statute to the father’s estate, and thus shield and protect the property of other people, (property given by way of advancement for example,) from the claim of the posthumous child. It would appear to be, strangely oblivious in the Legislature, to deem it necessary to use°words to restrain the operation of a law within certain bounds, when the law could not, under any circumstances, be construed to operate beyond those bounds. When a father advances property to a child, it ceases to be the property.of the father, and becomes the absolute property of the child, as much so, as if it had been bought and paid for in dollars and cents. It may afterwards be accounted for by the child, and brought into hotchpot; but that does not restore the ownership thereof to the parent or to his estate, and make the property a part of his estate. If it had that effect, then executors might claim commission on the amount; and in all cases in which a child should afterwards be called upon by the executor or creditors of the father, to make good the condition of a refunding bond, by contributing such child’s ratable proportion of any debts or demands, that had subsequently appeared against the father’s estate, , he would have to make a contribution, not only upon the property he had taken of the executor, as •distributee, but also upon the amount of the advancement so brought into hotchpot. No one will pretend that the child, under such circumstances, would be bound to make that contribution ; these views ought, I think, to be conclusive to show, that advancements brought into hotchpot, do not become a part of the father’s estate. If this be not the law, a child might be made, in a case which required it, to refund, not 1 only all that he had received from the executor, but an amount besides, equal to the full value of the advancement.

To say that an advancement, when brought into hotchpot, thereby becomes a part of the father’s estate, for any purpose whatever, is a misdescription of its true ^character. . Let us, for a moment, consider what it is. To bring an advancement into hotchpot, is substantially an agreement or claim on the part of the; child, that after giving to the other chiídreri, respectively, as much as he had received ,by advancement, he is to come in and have an equal share of what is left. In practice this end 'is accomplished, not bj' the inconvenient and troublesome, if not to say silly operation, of handing out to the unadvanced children so much of their father’s estate, as will make them equal to the advanced child, and then to divide the residue equally among all the children ; but it is accomplished by the more plain, simple, and convenient way, of adding the amount of the advancement to the value of the father’s estate, dividing by the number of children, and charging the advanced child with the amount of the advancement. In neither caséis the advancement actually brought forth, except like an item of debt in a mercantile account, which is to be balanced by a cross entry. Its effect is, not to give to the other children ‘any share or lot in advancements, but only to increase their share of the father’s estate, so that, in fact, what the other children do get,' consists entirely of what was the property Of the father at the time of his death; and so, also, upon the same'principle, what the posthumous child is to get consists entirely of property that belonged to the father at the timé of his death, and is truly in the language of the law “of thé father’s estate.”

By the act of descents and distribution, in' force when the testator, John Macon, died, it was provided, that when a man died, leaving a widow and children, after allotting to the widow one-third of the land as dower, the residue passed to the children in coparcenary, and after payment of debts, &c., and allowing to the widow her part of the personal estate, the residue passed to the children, share and share alike, subject to this qualification, that if either of the children had received an ‘ advancement of land from the father in his life, the *value of the advancement should be brought into hotchpot; or a child so advanced, and refusing to bring the advancement into hotchpot, should be excluded as an heir, from the division of the land.

Also, if any of the children had received personal estate of the father in his lifetime, by way of advancement, such children, should either bring its value into hotchpot, or be excluded from sharing in the distribution of the personal estate. It being a matter of choice with the advanced child, either to hold to his advancement and stand off, or to come in with his advancement and share in the division and distribution, the practical operation of the law in all cases has been, that the child has brought his advancement into hotchpot, where, by doing so, he could get a share of the father’s estate; but where, from the large amount of the advancement, nothing more would be coming to him, he has stood ofE with his advancement, and been, of course, excluded from the division and distribution ; and the estate was divisable amongst the other children.

The law under which Mrs. Wilson claims to be entitled to a share of her father’s estate, provides for a posthumous preter-mitted child, the same portion of the father’s estate, as such child would have been entitled to if the father had died intestate. It is, therefore, a vain thing to expect to find out the share of Mrs. Wilson in her father’s estate, unless we shall, in making the enquiry, consider that John Macon died intestate, and proceed, in all respects, according to the statutes of descents and distributions, and the practice which prevails under them. John Macon, in this stage of the question, must be regarded as having died absolutely intestate, unless we proceed upon this supposition, and make all the deductions which follow, as necessary consequences. In so proceeding, it' does seem to me that we depart from the rule which the law has prescribed, and withhold from Mrs. Wilson her legal rights under the statute.

To illustrate my views in this case, and to exemplif3T *the' principles which should govern the case, I will, for the present, dismiss from my mind the consideration of the rights of Mrs. Wilson, and will make the supposition of two cases, in each of which a posthumous child was born after the death of the father. For convenience sake, I will say nothing about the claims of the widow, of creditors, or of expenses of administration, and will regard them as otherwise provided for.

■ The first is the case of A. B., who dies possessed of an estate of $20,000. He makes a will, by which he gives to his four children his estate of $20,000, in, the following proportions, to wit:

After the death of A B his son G B is horn. He is pretermitted in the will.

The other is the case of O P, who dies intestate, possessed of an estate of $20,000, and leaves four children — R P, S P, T P and U P.

ToEPhe had advanced.$10,000

To S P " " .4,000

To TP “ “ .2,000

To U P nothing.0,000

A posthumous child, V P, is horn.

Here are two cases which are in all respects (with one exception) literally parallel with each other. The amount of the estate in each case is the same, the amount of advancements the same, the- number of children the same, and the birth of a posthumous child the same. The onljT difference between the two cases is, that in one case A B made a will, in the other O P died intestate; but, as in A B’s case, we are to regard him as having died intestate, the two cases are to be regarded as perfectly parallel in all respects.

*If these two supposed cases be parallel in all respects, it must follow, as a corollary, that the portion of the posthumous child in such case, will be the same in amount. The annexed statement will shew the portion of the posthumous child in the intestate case:

That this result is correct I presume every one will concede. It shews that, in this intestate case, the share of the posthumous child, V P, is $6,500. Now, if the share of the pretermitted posthumous child, in the other cdsé, is to be thesdmeas if the father had died intestate, his share, of course, would be the same — that is to sa3q it would be $6,500 — and yet, according to the opinion of those who differ from me, his portion amounts to the sum of $4,000 only. They would exclude the advancements, and divide 20,000 by 5. This difference can arise in no other way than by considering that the will of A B has a material bearing on the question ; and from considerations growing out of the will, this difference of $2,500, in the portions of the two posthumous children, is produced. What then, I ask, has become of the rule prescribed in the statute, which gives to the posthumous child the same portion of his father’s estate, that he would have been entitled to, if his father had died intestate?

*Upon this branch of the question I have nothing more to say; and not much on the other branch.

The remaining question to be considered is this: How is the portion of the posthumous child to be raised? The words of the law furnish the best and most authoritative solution to this enquiry, “towards raising which portion the devisees and legatees shall contribute proportionabljr out of the parts devised and bequeathed to them by the same last will and testament.” These words establish three propositions:

1. That the portion (the whole of it) is to be raised out of the father’s estate.

2. That it is to be raised by a pro rata contribution.

3. That the devisees and legatees are to make this contribution out of the parts devised pro rata.

These words also establish the converse of the first and third propositions — that is to say:

1. That the portion is not to be raised out of advancements; and

2. That the contribution is not to be made in respect to advancements, but out of the parts devised and bequeathed to the devisees and legatees.

We have, therefore, nothing more to do with advancements. The reason for taking advancements into our consideration, in ascertaining the amount of the portion, has nothing to do with the question, “how is the portion to be raised?” The recollection of advancements should be as completely obliterated from our minds, in solving this question, as the existence of the will was, or ought to have been, in considering the first question. The amount of the portion of G B, in the case supposed, is $6,500, towards raising which C B must contribute $1,625, D B $650, E B $2,925, and F B $1,300 — which several sums make $6,500.

It may be said to be unreasonable and unjust, to permit C B, who had received an advancement of $10,000, and who had stood off, to come in now, and receive his full legacy of $5,000 under the will, and *not be made to contribute anything on account of his advancement of $10,000; and to affow D B and E B, who had received advancements of $4,000 and $2,000, to take the full amount of their legacies, without being made to contribute anything on account of those advancements, more especially as the effect was to subject F B, who had received no advancements, to the responsibility of contributing more than would have been required of him, if those advancements had not been brought into hotchpot. Eet it be conceded, for the sake of the argument, that to permit this to be done is both unreasonable and unjust. Eet me ask whether these are proper elements to be considered in construing a law, the import and meaning of which, ' in the absence of those elements, is plain and unequivocal? If they are, what will be thought of the operation of the law upon a case like the following? A father possessed of money to the amount $119,800, gives to each of his five children, in his life-time, $20,000, and by will bequeaths the residue of his estate, being $19,800, to ten strangers, share and share alike — a pretermitted posthumous child is then born. According to my construction of the law, the five children having been advanced by the father with $20,000 in his life, (exceeding the amount of the whole estate, left by the testator, b3T $200,) would be excluded from a division, and there being no child left to divide with the posthumous child, he would take, as his portion, $19,800. But, according to that rule, which is to be laid down as the law of this case, the $19,800 would have to be divided by the number six — the aggregate number of all the children, including the posthumous child — giving to the posthumous child only $3,300. ■ The ten strangers would have the balance. Surely, this would be a hard case. One not the less galling to the child, when he reflects, that whilst he gets of his father’s immense estate only $3,300, each of the other children has received $20,000, and ten strangers the remaining $16,500.

‘’’Applying the principles of the foregoing opinion to the case under consideration, I should reverse the decree, and direct the proper accounts to be taken; but it being the opinion of a majority of the court, that there is no error in the record, the decree is to be affirmed with costs.  