The San Francisco call., 1910-10-05

must appear in the instrument of
transfer itself; or: it must be ac-
ment. by the child; or. it must be
charged in writing by the donor as an
advancement. When must this charge
be made and in what circumstances
will it be deemed sufficient? 1t is con
tended, by one side. that the writing
need not be contemporaneous, and that
to make the gift an advancement; that
any written words by the donor evil
dencing an intention upon his part that
that which he has given shall stand as
his heirs { law will comply fully with
Ill of the demands of the statute in
that regard. The word advancement
owes its origin to the design of the
decedent to advance the prospects of
his children in life, and decisions are
cited from Massachusetts and Michigan
as apt in their application to show,
that the writing need not be made at
the time of the transfer and that 1t
need not even be signed. Bulkeley
V. Noble, 19 Mass. 337. 1t may be
credited as a charge in book of ac
co0nts, subsequent to the transaction.
This was held to be in conformity with
the. statute directing what shall be
evidence of an advancement in case of
an estate Paine V. Parsons. 81 Mass.
sos. Bigelow V. Poole, rs Mass. 105.
In Michigan like doctrine was declared.
Powers V. Powers Estate. 80 n. w. so.
Counsel says that Michigan is the
direct parent of our statute and Massa-
chusetts the grand parent; both the
Michigan and the California statutes
are of common origin. Therefore the
construction of the courts of those
states is authority. So that to all in
tents and purposes the section of the
code of California under consideration,
so far as the precise point here is con-
cerned. has come to us with it's inter
probation placed upon it, and the cases
cited from those States are control
ling upon the proposition that the writ
ing need not be contemporaneous; their
statutes do not require it and our
statute was copied from Massachusetts
and the decisions are consonant in con-
struction.. Porter V. Porter. 81 Maine,
376. Smith V. Smith, 50 Maine PA
The statute is determinative of the
character of the evidence it is ex-
elusive of all other evidence; that is
the ineXorable nature of the law; con-
sequently 1T may not be aided by oral
testimony; an oral statement or dec
laration is in no sense evidence of. the
character of the transaction; the writ
and signifies the nature of the gift.
Doty ". Wilson. 47 N Y. $50. 1t is
claimed, therefore. that as we inherit
our statutes from Massachusetts, Maine,
and Michigan. we are bound by the
construction of their courts to the CON
clusion that the writing need not be
contemporaneous, and that any writing
of the decedent which sufficiently mani
tests the intent that the property
heretofore made over to his sons John
d. and Adolph B. should stand as a
provision for them out of his estate
and is sufficient compliance with all
that the statute demands
1t is conceded by the same counsel
that there is somewhat similar stat
differs from ours in certain essential
particulars. In Massachusetts, and in
Michigan the language is similar,
ALL gifts or grants shall be deemed
III N 4 \ re Il 18th,
pliance with certain requirements. of
which three are named while in Illi-
nois the statute says that mo" gift or
grant shall be deemed an advancement
unless it is in one of these three forms.
Here is seemingly a distinction with
out difference, but counsel saws that
two statutes is obvious: that one en-
larges, the other restricts Empbasis
is laid upon this difference because
within comparatively recent period
the supreme court of Illinois has held
that there must be contemporaneous
but counsel contend that
that decision can not affect this fcase
because it is not in our statute and II
it were, the Illinois statute would not
concern us, for Massachusetts, had al
ready impressed character upon the
statute agreeable to our Legislature be-
fore the contrary decisions were rem
dered. Wisconsin. also, it seems. had
held that it's statute requires a con-
writing, and its Ian
uase 10 lueHticai Win our own, but
1t is argued that this is no authority.
because it is adverse to the ruling of
the supreme court of California. Es-
tate Tompkins. 1872 Cal. 173. 1t is said
that the Wisconsin case is in the teeth
Of this decision. In the California case.
decided March II, 1901. the court said:
If the donor desires that an alb
solute gift be charged up against
any portion the .donee will receive
at his death, If he die intestate.
the only wav he can secure the ac-
complishment Of his desire is to