tate leaves no spouse nor kindred, his personal property, if any, shall escheat to the state.

7. All the provisions of this section shall apply as well to a surviving husband as to a surviving wife.45

113. Wearing apparel-Furniture, etc.-The right to this allowance. is absolute and vests immediately upon the death of the husband and without any selection by the widow. A selection is necessary only as a designation of the particular property she elects to claim. The abandonment of a husband by a wife, whether with or without cause, does not, in the absence of a divorce, forfeit her right to the allowance. She may waive her rights by declining or refusing to make a selection, or be estopped from asserting them by standing by and without protest permitting the property to be disposed of in administration proceedings. The statute expressly provides that the right to the allowance shall not be lost by an election to take under a will. The statute applies whether the decedent died testate or intestate. The allowance does not rest in the discretion of the probate court in any sense but is a matter of absolute right. No order of court is necessary. All that the probate court is called upon to do with reference to the property is to segregate it from the rest of the estate and order the executor or administrator to deliver it to the widow. A selection by a widow of such property as she was entitled to under this provision and a sale thereof by her, without any prior allowance by the probate court, has been sustained. If the widow dies before the property "allowed" to her by the statute has been set apart by order of the probate court, or before she has selected it, the right of selection survives to her personal representative. The widow of a non-resident decedent is entitled to the statutory allowance out of the property of her husband found in this state. The right to the allowance may be cut off by an antenuptial agreement."

45 G. S. 1913, § 7243, as amended by Laws 1915, cc. 331, 350; Laws 1921, c. 173.

46 Sammons v. Higbie's Estate, 103 Minn. 448, 115 N. W. 265; Rickert v. Wardell, 142 Minn. 96, 170 N. W. 915.

47 Horbach v. Horbach, 127 Minn. 223, 149 N. W. 303; Blakeman v. Blakeman, 64 Minn. 315, 317, 67 N. W. 69; In re O'Shea's Estate, 85 Neb. 156, 122 N. W. 881; In re Leavitt's Estate, 85 Neb. 521, 124 N. W. 114.

48 Redford v. Redford, 45 Minn. 48, 47 N. W. 308; Rickert v. Wardell, 142 Minn. 96. 170 N. W. 915; Barrett v. Heim (Minn.) 188 N. W. 207.

49 Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428.

48

52

53

50 Benjamin v. Laroche, 39 Minn. 334, 40 N. W. 156.

51 Sammons v. Higbie's Estate, 103 Minn. 448, 115 N. W. 265; Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876; Pourpore v. Stone-Ordean-Wells Co., 132 Minn. 409, 157 N. W. 648. See Benjamin v. Laroche, 39 Minn. 334, 40 N. W. 156.

52 Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428; Barrett v. Heim (Minn.) 188 N. W. 207. See Bigelow v. Booth, 38 S. D. 107, 160 N. W. 525.

53 In re Malchow's Estate, 143 Minn. 53, 172 N. W. 915; In re Deller's Estate, 141 Wis. 255, 124 N. W. 278. See Dunnell, Minn. Digest and Supplements, § 4285.

It may be waived by a family settlement. The right of a surviving husband to select personal property to the value of five hundred dollars, if not exercised in his lifetime, may be exercised by his administrator.55 The allowance is confined to the articles specified. The widow cannot select other property or money in lieu thereof.56 The property to which a widow is entitled under this subdivision is not an asset of the estate or subject to administration and is no part of the residue to be distributed. It is not liable for the payment of claims against the estate or the charges or expenses of administration." It is not liable for the expenses of the last sickness or funeral of the decedent.58 It is not subject to the inheritance tax.59 An action will not lie in the district court by a widow against a representative to obtain her statutory allowance. Her remedy is by petition in the probate court."

61

114. Residue to surviving spouse-Consent to other dispositionPrior to Laws 1903, c. 334, one spouse might disinherit the other as regards personal property. The omission from this paragraph of the statute of a reference to a disposition other than testamentary is obviously due to the fact that at the time of its adoption there was no limitation on the right of a spouse to dispose of personal property without the consent of the other spouse. 62 Laws 1903, c. 334, made it unlawful for a childless spouse to dispose of all his or her personal property by will to another to the entire exclusion of the husband or wife of such testator, and entitled the surviving spouse to the same interest in both real and personal property of the deceased, unaffected by contrary testamentary disposition.63

115. Property escheated-Refundment to heirs-Statute-Persons without known heirs-When any person who has died within the last past fifteen years in the state of Minnesota, or shall hereafter die being a resident of the state of Minnesota at the time of his death or owning property in said state, and his estate having been duly administered upon in the probate court of the county having jurisdiction thereof, and leaving no known spouse or kindred, and said estate having been.

54 Rickert v. Wardell, 142 Minn. 96, 170 N. W. 915.

55 Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876.

56 Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428.

57 Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428; State v. Probate Court, 137 Minn. 238, 163 N. W. 285; Barrett v. Heim (Minn.) 188 N. W. 207; In re Manning's Estate, 85 Neb. 60, 122 N. W. 711.

58 Barrett v. Heim (Minn.) 188 N. W. 207; Brown v. Keen (Mo.) 201 S. W. 621.

59 State v. Probate Court, 137 Minn. 238, 163 N. W. 285.

60 Fischer v. Hintz, 145 Minn. 161, 176 N. W. 177.

61 Johnson v. Johnson, 32 Minn. 513, 515, 21 N. W. 725; In re Rausch, 35 Minn. 291, 28 N. W. 920; State v. Hunt, 88 Minn. 404, 93 N. W. 314; Hayden v. Lamberton, 100 Minn. 384, 111 N. W. 278; State v. Probate Court, 129 Minn. 442, 445, 152 N. W. 845.

62 State v. Probate Court, 129 Minn. 442, 445, 152 N. W. 845.

63 Hayden v. Lamberton, 100 Minn. 384, 111 N. W. 278.

fully administered upon, and the balance in the hands of the representative of said estate having by order of said court escheated to, and been paid to the state of Minnesota, and if it shall be made to appear that said deceased person, in fact, left heir or heirs to his estate, then, upon the proper presentation of proofs of such heirship and amount so escheated to the district court of the county wherein such probate proceedings were had, either in term time or vacation, upon notice of at least twenty days to the attorney general in said state of the time and place of hearing such proofs, and if upon such hearing the said district court shall find that such deceased person left heir or heirs, said court shall determine who such heir or heirs are and the amount so escheated, and file its decision to that effect and a certified copy of said decision shall be forthwith filed with the state auditor. When the said court has filed its decision in an escheated estate as aforesaid, and it was determined in said decision that certain heir or heirs are entitled to money or property heretofore escheated to the state of Minnesota, it shall be the duty of the state auditor of the state to recommend an appropriation, in writing, by the state legislature, if in session, or, if not in session, then to the next legislature for the repayment or the reimbursement of said money, or the transfer of said property to such heir or heirs, or to his or their attorney in fact, upon the recording of his power of attorney in the office of the state auditor, and the state auditor shall draw his warrant on the state treasurer of said state for the payment of the amount so escheated, if in money; and if in property the state auditor under his seal shall duly execute a proper transfer thereof."

ADVANCEMENTS

116. What constitutes-Effect-Statute-Any estate, real or personal, given by an intestate in his lifetime, to a child or other lineal descendant, when expressed in the gift or grant as an advancement or charged in writing by the intestate as such, or so acknowledged by the child or other descendant, shall be deemed an advancement to such heir, and treated as part of the estate of such intestate in the distribution of the same, and shall be taken by such heir toward his share of the estate. When the amount advanced exceeds the share of such heir he shall receive nothing in the distribution, but shall not be required to refund any part of such advancement. When the amount so received is less than his share, he shall be entitled to enough more to make up his full share. Every advancement is a gift. Even in case of intestacy it re

65

64 Laws 1917, c. 72; Clifford v. Colbert, 141 Minn. 151, 169 N. W. 529.

65 G. S. 1913, § 7404. See Woerner, Am. Law of Adm. (2 ed.) §§ 552-559; 1 A. & E. Ency. of Law (2 ed.) 7C0; 14 Cyc.

163; 18 C. J. 911; 2 Ency. L. & P. 305; 1 R. C. L. 652; 12 L. R. A. 566; 65 Id. 581; 26 L. R. A. (N. S.) 1053; 80 Am. Dec. 559; 27 Am. St. Rep. 748; 56 Id. 54.

mains a gift. An advancement is never to be returned. In case of intestacy, the gift reduces by so much the share of the heir receiving it, while in case of testacy the gift becomes absolute. Where a father makes an advancement to his daughter and then dies testate, the advancement becomes a mere gift. A promise to repay it to other heirs and a mortgage to secure the performance of such promise are without consideration. An advancement does not involve an indebtedness.67 A debt is not necessarily to be treated as an advancement because a will orders it to be deducted from a child's share."s Where a note is given by a child for money furnished by a parent the transaction will be deemed a loan and not an advancement, in the absence of a writing clearly showing that it was intended as an advancement. A debt from an heir to a parent may be converted by the parent, with the consent of the heir, into an advancement, but when it is evidenced by a note there is a presumption that the transaction is a loan and not an advancement." 117. Value-How estimated-Statute-When such advancement is made in real estate the value thereof shall, for the purpose of distribution, be considered a part of the real estate to be divided, and when it is in personal estate as a part of the personal estate; and when in either case it exceeds the share of real or personal estate, respectively, that would have come to such heir, he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal to that of other heirs entitled to a like amount with him. When the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the intestate, or in the acknowledgment of the heir receiving it, that shall be its value in the distribution; otherwise, it shall be estimated according to its value when given, as nearly as can be ascertained."1

70

118. Effect of heir dying before intestate-Statute-When a child or other lineal descendant, to whom an advancement has been made, dies before the intestate, leaving issue, such advancement shall be taken into consideration in the distribution of the estate, and the amount thereof shall be allowed by the representatives of such heir, the same as though such advancement had been made directly to them.72

119. Determination in final decree-Appraisal-Statute-All questions as to advancements made or alleged to have been made by the intestate to any heir shall be heard and determined by the court at the time of final settlement, and every such advancement shall be specified in the decree distributing and assigning the estate. For the purpose of

66 Kuhne v. Gau, 138 Minn. 34, 163 N. W. 982.

67 Stenson v. H. S. Halvorson Co., 28 N. D. 151, 147 N. W. 800.

68 Cummings v. Bramhall, 120 Mass. 560.

69 Olney v. Brown, 163 Mich. 125, 128 N. W. 241.

70 Lodge v. Fitch, 72 Neb. 652, 101 N. W. 338.

71 G. S. 1913, § 7405. See 18 C. J. 929. 72 G. S. 1913, § 7406.

74

73

determining what proportion any one who has received an advancement is entitled to, the court shall ascertain the value of the entire residue of such estate, by ordering an appraisal, or in such other manner as it may deem best. All questions concerning advancements are to be determined on the hearing for a final decree of distribution. It is the duty of the court to determine the amount of any advancement to a distributee, to deduct it from his share, and to specify the advancement in the decree. The function of the court is to decide, from an examination of the whole record and upon weighing all competent evidence, the exact amounts which each distributee ought to receive in order to make the distribution of the whole estate, including all prior advancements, conform to the provisions of law and be just to all parties in interest. The result can be reached only by a consideration of all pertinent facts which have occurred during the settlement of the estate. Advancements made on account of distributive shares are proper items for an administrator's account. Such advancements may not have been made in the proportions required for the ultimate just distribution of the es-tate. In order that a decree be a plain and complete guide to the administrator it must state the exact amounts each distributee is entitled to in order to adjust the inequalities which have theretofore arisen.75 The finding of the court as to advancements is like the allowance of a claim; it is one of the acts to be done by the court in the administration and settlement of the estate. It is not an original proceeding for which notice is to be given, in addition to that for the final settlement and distribution. It is binding on a creditor of the heir to whom the advancement was made. In an action to set aside a final decree of distribution making no mention of advancements, held, that the supreme court would not presume that certain gifts to children were advancements.01 A finding as to certain advances held justified by the evidence.77

120. No consideration necessary-No consideration is essential to the validity of an advancement.78

121. Intent of donee immaterial-The question of an advancement is not determined by the intent of the donee.7

79

122. Applies only to intestate estates-Testamentary provisions-The doctrine of advancements, as embodied in the statute, applies only to intestate estates. The foundation of the doctrine is the purpose to carry

73 G. S. 1913, § 7407.

74 Greenwood v. Murray, 26 Minn. 259, 261, 2 N. W. 945; Bruski v. Bruski, 148 Minn. 458, 182 N. W. 620; McClave v. McClave, 60 Neb. 464, 83 N. W. 668; Case v. Clark, 220 Mass. 344, 107 N. E. 936.

75 Case v. Clark, 220 Mass. 344, 107 N. E. 936.

76 Liginger v. Field, 78 Wis. 367, 47 N. W. 613.

01 Bruski v. Bruski, 148 Minn. 458, 182 N. W. 620.

77 Gilman v. Maxwell, 79 Minn. 377, 82 N. W. 669.

78 In re Barnes' Estate, 177 Iowa, 122, 158 N. W. 754. See 18 C. J. 920.

79 Fitts v. Morse, 103 Mass. 164.