The San Francisco call., 1910-10-05

statute of 1850 to the word "decedent"
in section 1897 of the civil code oper-
ates an enlargement of the meaning
of the term 10 include testacy, and that.
therefore. even If this court hold that
this is a case OF partial testacy, still
IT NAV be construed as within the law
of advancement
An examination of code history will
show that our codifers did not inten,,
tionally make any such distinction, and
a comparison of code contexts will
serve the same purpose. The .codifiers
seem to have had in mind the Eng
lish rule which made total intestacy a
postulate for advancement. See Ammo
tated Civil Code of California. In Eng
land, as is conceded, there must be
total intestacy to invoke the doctrine
of advancement. 1t never has been
held there that it applied in any other
case In running our code sections
concerning the administration of intes- M
testate" and "decedent" used indiffer-
entity. Compare, for example, the sub
divisions of section 1855 as to the or
and 1t will be seen that in that statute
the word 'decedent'' is used as the
equivalent of a person dying intestate.
This is the way In which the New York
court undertook to interpret the ex-
preston by going to the provisions OF
the statute governing the granting OF
letters of administration. thompson "
Carmichael, 3 Sanfd. Ch. 119.
The word ''decedent" as used in the
Code of Civil Procedure relating to the
granting of letters of administrator,
ordinary sense, which, as defined by
Webster, means deceased person
that is. one dead; departed from TINS
life. Hence one, though clyliiy yn ,fa aeau, y
not a decedent, within the meaning 90 ol
the statute. Seph's Estate. so Hun. 52S.
The word "decedent" means means ,este either a
BOuVter'S Law Dictionary.
The word interstate signlnes pei
who died without yasay oS the wi
is a test as to intestacy. Cameron S
Estate, 81 n Y. Suppl. 1s7, 1sS. Al App
Div 100
The word "intestate." in the legal and
popular sense, means a person who dies
without making will. Such is It's
meaning in l Rev. ST p. 754, providing
that the sum of advancements made 10
the child of an intestate shall be de-
Quoted from his share of the estate.
unless the advancements exceed such
share, in which case the child shall IN
ger, 81 n; Y; Supp; 5Ss, 4 as s, APR Dly- ", 4s; i
sandf. Ch. 12o. 12s; Kent Y. Hopkins
Within the meaning of this law and
rule, a man who dies leaving a will Is
not an intestate. although by his VIII
he bequeaths only his personal estate,
Thompson " Carmichael IN Y.) 3
Sandf Oh. 120, 127, 129. Or one who
dies devising all of his real estate, or
case of partial intestacy Kent V.
Hopkins. S3 N. Y. Supp. 767, 76S, Sc Hun.
Gil.
1t is not necessary to engage further
in a consideration of the disputations
as to the meaning of these terms. The
foregoing remarks and citations are
sufficient to justify the conclusion that
the code of California can not be con-
strued to conform to the contention Of
the counsel for executors. This coun-
sci has argued with characteristic
force and ingenuity, that our statute
supplies to partial as well as total in
testacy, and he treats that proposition
as established, saying with .vigor that
in California, for the first time in the
history of legislati ton, the law of ad-
vancement is made definitely applicable
beyond the slightest doubt or question
to cases of both total and partial in
testacy and to both real and personal
property; and his argument is grounded
upon this verbal distinction between
terms which Mr.. Charles O'Connor in
the Carmichael case considered ingen-
uous but unreal, and the court In that
case seemed to adopt that counselor g
view, as may be seen in the citations
already made herein.
1 have read the arguments and opin-