the division and distribution of the estate, and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced, in like manner as if the advancement had been made directly to them."

OSTRANDER, J. (after stating the facts). This court has never decided, and it seems has not before had presented for decision, the precise question which is involved. It is claimed that upon the authority of First Nat. Bank of Durand v. Phillpotts, 155 Mich. 331 (119 N. W. 1), it must be held that the instrument executed by Mathias is ineffectual to bar his right to a share of the real estate. But in that case it did not appear that the alleged advancement was asserted in probate court, which court is expressly authorized (3 Comp. Laws, § 9457) to determine all questions as to advancements made or alleged to have been made by the deceased. The estate was assigned to the heirs as if no advancement had been made. The order assigning the real estate was recorded. The effect of an assignment of the real estate made in recognition of the advancement upon a levy made upon the interest of an heir before the estate was assigned is not discussed in the opinion. The legal effect of the instrument executed by one of the heirs and claimed to evidence an advancement to him in full of his share of the estate is somewhat discussed, but there is nothing said which may be considered as decisive of the point presented in the case at bar.

The property of one dying intestate goes, by operation of positive law, by distribution, or by inheritance, to certain persons in certain shares. The devolution of the property is independent of the wishes or the actions of the persons appointed by law to take it. The provisions of the statute concerning advancements are a part of the law governing the devolution of such estates. Until the death of the ancestor the heir as heir or as distributee has no interest in the estate. And it was the rule of the common law that a release by a child of an interest in the estate of his parent, if made during the life of the parent, was inop

erative, because all interest in the estate was then in the parent.

I have here stated, in substance, the grounds of the argument made in behalf of the appellant, in which it is contended that the statute furnishes the exclusive and unavoidable rule for the devolution of intestate estates, as well where advancements have been made as where they have not been made. It must be conceded there is some reason and very respectable authority to support this contention. At first blush, it seems a simple enough matter to say that the statutes of descent and distribution are framed so as to secure equality of interest of those entitled to an intestate property that the owner may, if he chooses, change the statute devolution by his will, but not otherwise, and that if he makes a gift and characterizes it as an advancement, and dies intestate, it must, by virtue of mandatory provisions of the law, and no matter upon what terms the advancement is made, be considered as a payment pro tanto of the share of the child advanced. But such a rule appears less reasonable when it is considered that advancements are not necessarily enforced according to a theory of partial or total non-devolution of the estate to the person advanced. The legislative conception of the matter seems rather to have been that they would be enforced as a present payment for that which might otherwise later belong to the heir. The estate actually belonging to the intestate at the time of his death is enlarged by the advancement theretofore made. It is the actual estate, plus the advancement, which is regarded. And, as an advancement is considered to have been a portion of the patrimony already distributed or assigned, the theory of administration in such cases is one of set-off and adjustment rather than one of avoidance either of the statute of descents or of distribution. To the suggestion that a considerable inequality of interest may be, in fact, the result of accepting an advancement as in full for the statute share, it may be well replied that in most cases it will be uncertain whether any advance

ment will not result in inequality. The ancestor, after advancing a child or children, may accumulate or may lose property. Other children may be born. The statute does not expressly forbid one to receive in advance his full share of the estate and to acknowledge it as such. If he does so receive it, it is his promise or agreement or covenant, and not the mere voluntary act of the ancestor, which creates the bar. And if it is conceded, as upon both reason and the weight of authority it must be, that in the absence of the statute provisions concerning advancements the heir may, the ancestor living, bar his right to a share in his estate, not indeed by a present release or conveyance, but by a contract or covenant not to claim the interest when, if ever, it has vested, then the statute provisions must be construed with reference to such a right.

It seems to have been the rule of the common law that, if an heir released with warranty, it barred him when the right descended. 2 Coke upon Littleton, p. 265a. To this effect are many decisions of the courts, some of which will be later referred to. No particular form of words is required to constitute such a covenant, and it is no longer important that any particular ceremony accompany or evidence the making of such a covenant. The precise question involved has been many times decided, though not always in the same way. It is unnecessary to cite the large number of authorities which have been examined. They are well collected in McCall v. Hampton, 33 L. R. A. 266, 278 (98 Ky. 166, 32 S. W. 406), note, and in Headrick v. McDowell, 65 L. R. A. 578 (102 Va. 124, 45 S. E. 804), note. The subject of advancements is treated in 1 Am. & Eng. Enc. Law (2d Ed.), p. 760, and in 14 Cyc. p. 162.

The weight of authority recognizes the right of the heir who has attained majority to accept presently in advancement his full share of the estate of the parent. Whether the arrangement is called a contract not to take, or a release to take effect in the future, the principle is the same.

When the estate is cast by the death of the ancestor, it operates to estop the heir to take what he has agreed he will not claim. A leading case in which the rule is announced is Quarles v. Quarles, 4 Mass. 680. The statute in force in Massachusetts when this decision was rendered (1808) was substantially the statute, originally adopted from that State, now in force in this State. In Illinois, where a similar statute is in force, the same rule is adopted. Simpson v. Simpson, 114 Ill. 603 (4 N. E. 137, 7 N. E. 287). See, also, Jones v. Jones, 46 Iowa, 466; Trull v. Eastman, 3 Metc. (Mass.) 121 (37 Am. Dec. 126); Coffman v. Coffman, 41 W. Va. 8 (23 S. E. 523); Curtis v. Curtis, 40 Me. 24 (63 Am. Dec. 651); Power's Appeal, 63 Pa. 443; In re Lewis' Estate, 29 Ont. 609.

We are satisfied that it is the better rule, and that the court below was not in error in adopting it. Nor do we need to consider whether such an undertaking may be given effect in courts of law. It has been pointed out that probate courts, which in the settlement of estates proceed largely according to equitable theories of rights, are expressly authorized to determine all questions concerning advancements. In this case the receipt given by Mathias to his father is, as he agreed it should be, produced on the part of the estate to estop him from asserting any right to share therein. There is no reason why the probate court should not have determined, as it did, its legal effect. The judgment is affirmed.

HOOKER, MOORE, MCALVAY, and BROOKE, JJ., concurred.

SCHNIDER v. MONTROSS.

1. FALSE IMPRISONMENT-ARREST WITHOUT WARRANT.

An arrest without a warrant, on a charge of selling meat without a license, in violation of a village ordinance, is unlawful.'

2. SAME.

An officer may arrest without a warrant only in cases of felony or breaches of the peace.

3. SAME-DAMAGES-MALICE.

Actual damages may be increased for reckless or malicious conduct of the officer making the unlawful arrest.

4. MALICIOUS PROSECUTION - JUSTIFICATION UNDER PROCESS PROBABLE CAUSE.

No recovery can be had for a subsequent arrest under a warrant fair upon its face, where a conviction in justice's court resulted; probable cause being established by the conviction.

Case made from Oakland; Smith, J. Submitted June 22, 1909. (Docket No. 87.) (Docket No. 87.) Decided September 21,

1909.

Case by C. Ralph Schnider against James Montross for false imprisonment and malicious prosecution. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on a case made. Reversed.

Austin E. Richards, for appellant.
Andrew L. Moore, for appellee.

The plaintiff is a meat peddler in Oakland county and particularly in the village of Leonard, in said county. The defendant, upon the date of the commission of the alleged wrong to plaintiff, was the proprietor of a butcher shop in said village. On April 24, 1908, there was in force in said village Ordinance No. 264, making it unlaw

'As to liability of officer for making arrest without warrant, see note to Leger v. Warren (Ohio), 51 L. R. A. 193.