The San Francisco call., 1910-10-05

the purpose Of satisfying the statute
Ss as TO adVancement which says that
"aH gifts and grants are made a s ad-
Vancements if expressed in the gift or
grant to be so made, or If charged in
writing by the decedent as an advance
ment."
Herein lies the whole question What
is 1t TO charge as an advancement?
Counsel have traversed history from
the time of the Merry King 10 the
prosaic present TO acquaint US with the
law of advancements.
1t is essential. say counsel. 70 go
into the history OF this law in order
derstanding of the code sections cited
and quoted. History is philosophy
teaching by examples; so we must
learn, according TO argument. from the
cases what the statute means. Coun-
sci claim that the spirit of the statute
of Charles III is imported into our
codes, that we use the term advance
ment" in much the sanfe way that it
was then used in the years of grace
l611-1672 and that our law is based
substantially upon that statute modi-
fed in different states. but having its
parentage in the time indicated. and,
turning again TO our California code.
1t is asserted. that we use the term
much in the same way that the English
spirit of the statute of Charles II Is
incorporated into our present code
reincarnated as it were.
To illustrate this argument may be
inserted the quotations made from the
appendix TO Thornton on the law of
Advancement:
All ordinaries and every other
person who by this act is enabled
10 make distribution of the sur
plusage of the estate of any per-
son dying intestate. shall distri-
butte the whole surplusage of such
estate or estates in manner and
form following; that is to say, CD
one-third part of the said sur
plusage to the wife of the intestate,
and all the residue by equal por-
tions, to and amongst the children
OF such persons dying intestate,
other than such child or
children who shall have any
estate by the settlement of the in
testate, or shall be advanced by the
or portions equal to the share
which shall by such distribution be
allotted to the other children TO
whom such distribution is to be
made; CD and in case any child
who shall have any estate
by settlement from the said inte
state, or shall be advanced by the
said fntestate I'm his lifetime by
portion not equal to the share
which shall be due to the other
children by such distribution as
aforesaid; then so much Of the sur
plusage Of the estate Of such in
testate, to be distributed TO such
child or children as shall have any
land by settlement from the inte-
time of the intestate the estate of
all the said children to be equal
as near as can be estimated.
Following this. by way of compar-
ison, to show parentage of our statu-
tory provisions AMI TRANSMISSION of
ideas we have the language quoted
from our civil code, section 1899, and
others cited:
If any child or other heir receiv-
ing advancement died before the
decedent.
If the estate so advanced
or gifts are made as adyancemen.s.
If the amount of such advance
menf exceeds the share of the heir
receiving the same.
ANY estate, real or personal
given by the decedent in his life
time is an advancement;
and also section 1909:
If such children, or their de-
scendants, so unprovided for, had
an equal proportion of the testator's
estate bestowed on them in the
testator,s lifetime. hy way of ad-
virtue of the provisions of the
three preceding sections.
An advancement, in law, rs defined
to be provision made by a parent for
a child during the parents lie, by gift
to which the child would be entitled
as heir or next of kin after the par
ent,s death.-Century dictionary.
Money or property given by a father
expended by the former for the iatter's
benefit. by way Of anticipation of the
the fathers estate and intended to be
deducted therefrom. IT is the latter
which differentiates an
advancement from a gift or a loan.
Advancement in its legal accepta
tion, does not involve the idea or obli-
cation or future liability to answer.
1t is pure and irrevocable gift made
by parent to a child in. anticipation
- III
parents estate. Yundts appeal, Is Pa.
st. $50.
An advancement is any provision by
a parent made TO and accepted by a
or property. during his life time. over
and above the obligation Of the parent
for maintenance and education. Code
ca, 1882. section 257s. Civil code Ga.
An advancement by portions: with
In the meaning of the statute, is a sum
given by paren. to establish n child
IN life, Gas by starting him IN busi-
ness), or to make provision for the
child, (as on the marriage o. a dsugh-
ter.) Taylor VS.. Taylor, L. r. 20 Eq.
l55. Blacks law dictionary.
Advancement" has been defined to
be that which is given by a father to a
child or presumptive heir by anticipa-
ton Of what he might inherit. Hat
tersley VS.. Bissett, On. J.) 25 All. 332.
All gifts and grants are made as ad-
vancements. if expressed in the gift or
grant to be so made, or if charged in
writing by the decedent as an advance
ment, or acknowledged in writings as
such by the child or other successor or
heir. -sev. ST. Utah 1898, Sec. 2S43;
Rev. ST. OkE 1908, Sec. 69O7 Rev.
Codes n. d. 1899, Sec. 1854; Civ. Code
S. D. 1903. Sec. i106; Civ. Code Idaho
1901, Sec. 2545; Civ. Code Mont. 1895,
Sec. 1863. Comp. Laws Mich. 1897, Sec.
9O72.
According to the decisions under the
English aad similar American statutes
the ancestor must have died intestate
in order to make a gift an advance
ment. Grattan VS.. Grattan, is Ill. (s|
Peck.) 167, 170.
The idea of the rule is said to be to
maintain equality among the children;
il is the great moral and equitable prin-
,iple Of equality; that was the purpose
Of the statute of Charles II, but that
statute did not require q charge of
expression or Acknowledgements in writ
ng and it might be that under the
ion here would be considered ad-
yancements, while the contrary would
Dc the case under our code, unless 1T be
'ound that there is proof of charge
n writing according to the terms of
)ur statute.
Every advancement is a gift, but the
converse is not true, every gift is not
IN advancement. To make the gift an
it must be charged as
iuch in writing The intent to make |
he gift an advancement is under our
tatute, conclusively presumed from
he written charge. and this intent is |
Exhibited in any one OF three ways: 1t |