The San Francisco call., 1910-10-05

with all power over the property once
he made the gifts to his sons John
and Adolph. and he could not there
fore restrict or qualify the nature of
the act. The only way in which the
charge could be made as to the donee
Is bv the latter's acknowledgment In
writing. Civil Code. California Sec
1897
According 10 the dominant authori-
lies. this charge in writing must be
oT5+eronOraneous: il must not be ex post
facto; II can not be effected by recital
in q Will made several years supse-
Quently; but this VIII does not chaIs =
these gifts as adVancementS, on the
contrary. testator declares in the four IN
clause that he makes no PROVISION IN
his viii" for John and Adolph because
he had already given 10 them large
part of his estate. That was his ex
parIe and ex post factO declaration, IN
which there was no written consent OF
the dOnee. as by the statute required.
when he made the gift ii should ap-
pear that il was intended as an ad-
Vancement. otherwise 1t is an absolute,
irrevocable gift, and no subsequent
statement. even in a will can change
the original character of completed
transaction. 1t is question OF intent
10 be determined by contemporaneous
circumstances; always TO be ascertained
by what took place at the time, and, in
the absence Of evidence s 10 this, by
the attendant mStanceS.-Reinoehl s
Estate, 212 Pa. st. $50
N the Michigan case II would seem
that the testator had retained the right
Of testamentary disposition over the
testacy, and therein differs from the
case at bar. McClintock's Appeal, 5S
Mich. 152. The other Michigan case,
Power vs.. Powers Estate, 81 Mich. 5S7,
seems to be strictly q case of contem-
poraneous charge. Neither of these
cases would appear to be advantageous
10 the contention OF counsel for execu-
These cases DO not serve to support
the proposition presented by counsel, in
the estimation OF this court, If they are
read right
Counsel for executors advert to the
effect OF the judgment upon the demur-
rers in the matter Of the partial distri-
button, and insist that that judgment
Imports total intestacy, and that. there
fore, opponents here have no standing.
What was determined by the judg-
ment upon the demurrers in the matter
OF the partial distribution? The rea-
soning Of the court in coming TO it's
conclusion can not bind the parties, but
the judgment as entered determines the
character OF the Issues submitted and
decided. and that judgment or order re-
cites that the matter coming on regu-
larly TO be heard upon the demurrers
fled by John and Adolph as heirs at
law TO the amended petition of Claus A.
and Rudolph praying for distribution
10 them as trustees named in the will
% N-clA6 ~ CChcAS VI tam properties
described upon certain trusts and to be
by them held u certain uses and pur-
poses In said VIII set forth ''and II
appearing TO the court that Anna Chris
tina Spreckels. widow, and named ir
eaid VIII and testament of said Claus
Spreckels. deceased, died IN the city
and county OF San Francisco on the
10th day Of February, 1910. at the hour
OF o'clock and 10 minutes a m OF
said day, and the death of said Anna
christina spreckels having been sug-
gested TO this court, and the court hav-
ing the said matters under submi ssion,
and being fully advised in the premises
1t is hereby ordered, and adjudged and
poecreed that said demurrers be sus-
ftained and said amende petition of
& said Claus A. and Rudolph be refused
nand denied" This was dated February
8 Is. 1910.
This is the judgment appealed from
the decision Of the court and whether
erroneous or correct must stand or fa n
by Its terms. In the course of the
opinion this court said: ut appears ID
be admitted that the first trust pur-
pose declared by the will, to provide ar
income for the wife, is valid: but If Is
asserted that the second and third