In Logan v. Logan, adm’r, 13 Ala. R. 653, it was decided that the widow can claim nothing from advancements made by the husband to his children, and by them brought into hotchpot. This conclusion was attained upon the construction of the statute of distributions of 1826, and of the acts of 1822 and 1828, which provide for children of intestates, who have been advanced, bringing their advancements into hotchpot, and the mode of valuing such advancements, &c. We also examined the English statute of distributions of the 22 and 23 Car. 11, ch. 10, and kindred enactments in several of the states of the Union, with decisions adjusting their interpretation. It was added as a clear deduction from these, that “ our act of 1826, we have seen declares, the widow’s share in the estate of her deceased husband, which shall be left after the payment of his debts, and the previous statutes of distribution of 1806, and 1812, only operated upon the surplus. The statute of 1822, which we have cited, requires the children of the intestate to bring their advancements into hotchpot, where they “shall choose to come into the partition of the estate with the other parce*181ners.” What is 'said in the act of 1826 in respect to the widow being entitled to “ a child’s part,” where there are not more than four children, is restricted by the preceding part of the section to “ a child’s part,” or, in other words, to a share of the decedent’s estate proportioned to the number of children, which may remain subject to distribution after his debts are paid. This conclusion is not attained by an application of the principles of construction, but is the clear result of the language employed.”
The English statute of distributions is quite as expansive in its provisions as the several enactments of this state, and as it respects the effect of advancements, may furnish a guide for their construction. After providing in what manner the estate of a person dying intestate shall be distributed between his wife and children, it directs that advancements made to any of the children by the intestate, shall be taken into the account, if those thus advanced shall claim a share in the estate, so as to make the portions allotted to the children, or their representatives, equal, as near as may be. 2 Wms. on Ex’rs, 906. “ The end and intent of the statute was, to make the provision for all the children of the intestate equal, as near as eould be estimated.” Id. 917, 918. “If one of the several children be fully advanced, the effect is to remove that child entirely out of the way, and to increase the shares of the others, and not of the dead man’s part. If any of the children shall have been advanced partially, they must bring their portion into hotchpot, before they can derive any advantage from the custom. But such partial advancement, like a full advancement, shall be brought into hotchpot with the orphanage part only. Therefore, the children who have been partially advanced, shall bring their portion into hotchpot with the other brothers and sisters only, and not with the widow: for the principle is, as also with respect to the statute of distributions, to make an equality among the children, and not to benefit the widow. Id. 949. See also, Id, 919; 2 Step. Com. 255.
This equitable provision, it has been said, was derived in England from the collatio bonorum of the imperial law; which it certainly resembles in some points, though it differs widely in others. But with regard to goods and chattels, it is *182“part of the ancient custom of London, of the province of York, and of the sister kingdom of Scotland; and with regard to the lands descending in coparcenary, that it has always been, and still is, the common law of England, under the name of hotchpot.” 2 Wms. on Ex’rs, 918. These are the customs to which reference is made by the same learned author in the preceding paragraph. See Lord Kircudbright v. Lady Kircudbright, 8 Ves. 64.
From this view of the law, we think it obvious, the distributive share of the widow in the estate of her deceased husband, under the act of 1826, where there are not more than four children, is to be ascertained by a reference to the number of children. The extent of their advancements, or whether they shall elect to bring them into hotchpot, can have no influence upon the share to be allotted to her. This is ascertained by the statute, and is a “ child’s part,” supposing all the children to participate equally with herself in the estate which may remain after the payment of the debts. She can neither gain nor lose by the advancements being brought in or withheld. The children advanced must elect whether they will come into the distribution, and cannot be coerced; if they come in, the court will see that they share equally in the fruits of their father’s acquisitions. Equalization of their portions, is the object to be effected by bringing ing their advancements into hotchpot, and the widow, we have seen, can derive no benefit from them.
If any of the children have been advanced, and decline to come in for a further portion, the reasonable inference is, that they would not be benefitted by such an arrangement, or if they would, that they are willing to yield up the prospect to the other children. If the former motive influenced them, and they really have been fully advanced, then the residue of the estate, after allotting to the widow the share which the statute prescribes, would be necessary to make the children who seek a distribution, equal participants with the others in their father’s bounty. If the latter motive supposed, prompted the advanced children to ask nothing more, then the widow can claim nothing from an act of liberality which did not inure to her benefit. This view will serve to show, that thé term “ children,” where it occurs in the statute, can*183not be restricted to such as may come in for a distributive share of the estate. There is nothing in the letter of the act to require such a construction, and we think it unauthorized by the judicial expositions of such enactments elsewhere.
As the case at bar arises upon the distribution of an intestate estate, it is not necessary to inquire whether, where the widow dissents from her husband’s will, a disinherited child shall be numbered among the testator’s children, in apportioning the widow’s share. The result of what we have said is, that the judgment of the .orphans’ court must be affirmed.