Rogers, J.
The evidence which forms, the ground-work of the defendant’s exceptions may be classed under two heads:—
1st. The rejection of the promissory notes given by Henry Earliest to Baltzer Earnest, and •
2d. The refusal to admit the notes with the explanatory evidence of Catharine Earnest.
As to the first point, it seems to have been conceded on the argument. in the court below, that.a debt due by a son to a'father, cannot be set off in a suit brought by the grand-chijdren for a distributive share of the estate of the grandfather. .Now, it appears to us, that whether the notes were evidence of a debt, or are to be taken as an advancement, is immaterial, so far as their admissibility in evidence is concerned. It is clear, that ii Henry Earnest, the father of the plaintiffs, had been, alive and had brought suit for a distributive share of the estate, the administrators could have availed themselves of the defence, and it is not perceived in what respects the plaintiffs are in a better situation. They claim not as next of kin, but by right of representation; for by the third section of the act of the 19th of April, 1794, such issue are allowed to inherit such share only, as would have descended to the parent, if such parent had been living. And the 9th section, which relates to advancement, contains this exception; that when the issue to take shall not be of equal degree to the person dying, seized or possessed, the several descendants taking by way of representation, shall inherit such share only, as would have descended or been distributed, to his, her, or their parent or ancestor, if such parent or ancestor had been then living.
There has been no direct decision on’the effect of the above section in this state, but on the construction of the English statutes of distribution, which are in substance the same, many points have been ruled, and to these, it will be only necessary briefly to advert. The cases are classed under three heads.
1st. Where none of the intestate’s children are dead.
[219]*2192d. Where the intestate’s children are all dead, all of them having left children.
3d. Where some of the intestate’s children are living, and some dead, and such as are dead have left children.
In the two first classes the parties are said to take per capita, or in other words, equal shares in their own rights; but in the last case, the grand-children take per stirpes, that is to say, not in their own right, but by representation.
This case is one of the last description, and as the plaintiffs entitle themselves as representing their parent only, they must take the share which descended to them, with all the burden with which it would have been charged, had their parent been living.
The primary object of the act is equality in the different branches, springing from the common ancestor; and this effect is produced by placing the grand-children so far as the other heirs are concerned, but no further, in the place of their respective'parents. It has been decided in Proud v. Turner, 2 P. Wms. 560, that if a child who has received any advancement from his father, shall die in his father’s life-time, leaving children, such children shall not be admitted to their father’s distributive share, unless they bring in his advancements, since as his representatives, they would have no better claim than he would have had, if living. As the issue stands in the place and stead of the father in cases of an advancement, thére could be no reason why they should be in a better condition than their father would have been, if he had claimed his distributive share when largely indebted to the estate, of which he desired to participate. 3 Bacon’s Ab. 75. 1 Equity Cases Abridged, 249. Walsh v. Walsh, Precedents in Chan. 54. Toller, 374. 378.
The disposition thus made of the first point, makes the second of but little importance. For the administrators admit that these notes although prima facia evidence of a debt, were intended as an advancement ; and this it is no longer the interest of the plaintiffs to deny, for it makes this difference to them, that as a debt, they must account for principal and interest; but as an advancement for principal only.
But it is said the question of advancement, can only be settled in the Orphans’ Court.- That it may be settled in that court, there is no doubt; but that it must, is not so clear. An administration account, is an exhibit of the estate of the intestate of which an advancement is properly no part. A child to whom an advancement has been made, cannot be called on to supply a deficiency of the estate for the benefit of either creditors, or legatees, for that is no part of the assets of the estate. The act does not divest the child of any property which has been given to him, however unequal it may have been, or how much soever it may exceed the residue; he may if he pleases, keep it all. If he be not contented, but would have more, then he must bring what he has before received, as the law expresses it, into hotch pot, that is, into the general mass of the [220]*220.property to be divided. But a child is not compelled to bring the amount of his advancement into hotch pot, until the balance has been struck, and the amount of the surplus to be distributed, has been ascertained. When the value of the estate is known, if he is not satisfied with what he has received, he must account for the amount he had already been advanced; when the balance is struck and distribution of the surplus is to be made, then, and not till then, it becomes important to ascertain the amount which each of the heirs or distributees has received, either from the administrator or the ancestor.
Distribution, is usually made either under the 13th or 16th section, of the act of 1794, that, is, either with or without an application to the Orphans’ Court,' taking a bond with sufficient securities, to indemnify the administrator against any debts that might afterwards be recovered against the estate. When an application is made to the Orphans’ Court, they no doubt would have power to inquire into and settle the amount of the advancements, and to make a special decree ascertaining the respective rights of each, and the persons to whom distribution should be made. But it has not been usual to make a special decree, but the practice with some exceptions .in the Orphans’ Court, has been to make a general decree, that the balance be distributed according to law, leaving it to the administrator, taking the security prescribed by the act, to pay to each person entitled, the amount of his distributive share, or in case of difficulty, to settle the right of the respective heirs in a suit in the common law courts. Where the advancement is of a certain value, as of a sum of money, either the administrator or the Orphans’ Court, can settle the distribution without difficulty; when it is uncertain, as a tract of land, for example, a jury would seem to be the appropriate tribunal.
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Rogers, J.
The evidence which forms, the ground-work of the defendant’s exceptions may be classed under two heads:—
1st. The rejection of the promissory notes given by Henry Earliest to Baltzer Earnest, and •
2d. The refusal to admit the notes with the explanatory evidence of Catharine Earnest.
As to the first point, it seems to have been conceded on the argument. in the court below, that.a debt due by a son to a'father, cannot be set off in a suit brought by the grand-chijdren for a distributive share of the estate of the grandfather. .Now, it appears to us, that whether the notes were evidence of a debt, or are to be taken as an advancement, is immaterial, so far as their admissibility in evidence is concerned. It is clear, that ii Henry Earnest, the father of the plaintiffs, had been, alive and had brought suit for a distributive share of the estate, the administrators could have availed themselves of the defence, and it is not perceived in what respects the plaintiffs are in a better situation. They claim not as next of kin, but by right of representation; for by the third section of the act of the 19th of April, 1794, such issue are allowed to inherit such share only, as would have descended to the parent, if such parent had been living. And the 9th section, which relates to advancement, contains this exception; that when the issue to take shall not be of equal degree to the person dying, seized or possessed, the several descendants taking by way of representation, shall inherit such share only, as would have descended or been distributed, to his, her, or their parent or ancestor, if such parent or ancestor had been then living.
There has been no direct decision on’the effect of the above section in this state, but on the construction of the English statutes of distribution, which are in substance the same, many points have been ruled, and to these, it will be only necessary briefly to advert. The cases are classed under three heads.
1st. Where none of the intestate’s children are dead.
[219]*2192d. Where the intestate’s children are all dead, all of them having left children.
3d. Where some of the intestate’s children are living, and some dead, and such as are dead have left children.
In the two first classes the parties are said to take per capita, or in other words, equal shares in their own rights; but in the last case, the grand-children take per stirpes, that is to say, not in their own right, but by representation.
This case is one of the last description, and as the plaintiffs entitle themselves as representing their parent only, they must take the share which descended to them, with all the burden with which it would have been charged, had their parent been living.
The primary object of the act is equality in the different branches, springing from the common ancestor; and this effect is produced by placing the grand-children so far as the other heirs are concerned, but no further, in the place of their respective'parents. It has been decided in Proud v. Turner, 2 P. Wms. 560, that if a child who has received any advancement from his father, shall die in his father’s life-time, leaving children, such children shall not be admitted to their father’s distributive share, unless they bring in his advancements, since as his representatives, they would have no better claim than he would have had, if living. As the issue stands in the place and stead of the father in cases of an advancement, thére could be no reason why they should be in a better condition than their father would have been, if he had claimed his distributive share when largely indebted to the estate, of which he desired to participate. 3 Bacon’s Ab. 75. 1 Equity Cases Abridged, 249. Walsh v. Walsh, Precedents in Chan. 54. Toller, 374. 378.
The disposition thus made of the first point, makes the second of but little importance. For the administrators admit that these notes although prima facia evidence of a debt, were intended as an advancement ; and this it is no longer the interest of the plaintiffs to deny, for it makes this difference to them, that as a debt, they must account for principal and interest; but as an advancement for principal only.
But it is said the question of advancement, can only be settled in the Orphans’ Court.- That it may be settled in that court, there is no doubt; but that it must, is not so clear. An administration account, is an exhibit of the estate of the intestate of which an advancement is properly no part. A child to whom an advancement has been made, cannot be called on to supply a deficiency of the estate for the benefit of either creditors, or legatees, for that is no part of the assets of the estate. The act does not divest the child of any property which has been given to him, however unequal it may have been, or how much soever it may exceed the residue; he may if he pleases, keep it all. If he be not contented, but would have more, then he must bring what he has before received, as the law expresses it, into hotch pot, that is, into the general mass of the [220]*220.property to be divided. But a child is not compelled to bring the amount of his advancement into hotch pot, until the balance has been struck, and the amount of the surplus to be distributed, has been ascertained. When the value of the estate is known, if he is not satisfied with what he has received, he must account for the amount he had already been advanced; when the balance is struck and distribution of the surplus is to be made, then, and not till then, it becomes important to ascertain the amount which each of the heirs or distributees has received, either from the administrator or the ancestor.
Distribution, is usually made either under the 13th or 16th section, of the act of 1794, that, is, either with or without an application to the Orphans’ Court,' taking a bond with sufficient securities, to indemnify the administrator against any debts that might afterwards be recovered against the estate. When an application is made to the Orphans’ Court, they no doubt would have power to inquire into and settle the amount of the advancements, and to make a special decree ascertaining the respective rights of each, and the persons to whom distribution should be made. But it has not been usual to make a special decree, but the practice with some exceptions .in the Orphans’ Court, has been to make a general decree, that the balance be distributed according to law, leaving it to the administrator, taking the security prescribed by the act, to pay to each person entitled, the amount of his distributive share, or in case of difficulty, to settle the right of the respective heirs in a suit in the common law courts. Where the advancement is of a certain value, as of a sum of money, either the administrator or the Orphans’ Court, can settle the distribution without difficulty; when it is uncertain, as a tract of land, for example, a jury would seem to be the appropriate tribunal. In some cases it must be admitted, a settlement in the Orphans’ Court has an advantage over a common law tribunal, as the Orphans’ Court acting as a court of equity, have the power to bring all the parties before them, and can settle the controversy by one decree, as for example, when several of the children have been advanced, and a controversy exists as to the amount or value of the advancement of one or all of them, the Orphans’ Court can and ought to take jurisdiction of the cause. When some of the heirs reside out of the state, the manner of proceeding is prescribed by the act of the 13th of March, 1815. But where all the heirs reside in the state, there is no statutory regulation. The inconveniences which caused the enactment do not exist here, and in such cases the manner of proceeding prescribed by the act of 1815, may furnish a safe rule.
In the latter case, the amount which each had been advanced, may be.readily ascertained by application to the parties, or by application to the Orphans’ Court, with notice to the heirs. But this can be necessary only where the administrator has notice, that [221]*221some of the heirs have been advanced, for when he makes distribution, either with or without the sanction of the court, but without notice of any advancement made by the ancestor, he should be protected. And this would seem to be equitable, for all that an administrator has a right to require from the distributees, under the act of 1794, is an indemnity against debts that might be afterwards recovered from the estate.
Judgment reversed, and a venire de novo awarded.