The San Francisco call., 1910-10-05
EACH SPRECKELS HEIR TO GET ST. 100000
Coev
Estate Left by Their Parent

ion in that case with care, and, so far
as the counsel are concerned, 1t is not
too much to say that in the matter at
bar the propositions have been pre-
sented with at least equal learning and
ability in advocacy.
An intent to alter the pre-existing
law is not to be inferred from mere
prior statutes. and there is no reason
to conclude that our codifers had any
such purpose in mind, and as we nave
seen in the article relating to granting
letters of administration the word
'decedent was used as synonymous
with ''intestate"
To interpret this statute otherwise
would be, to make constructive in
teStdcy Where there was no actual one
This would SAVIOR of judicial legislation.
The safe course, as pointed out In the
Carmichael case, is to follow the plain
terms of the statute and not to attempt
innovation, and on the statute total
intestacy appears to be contemplated
But the counsel for executors in the
new proposition; the first case under
our modern legislation; the question
has never before arisen, and 1T is one
OF original impression, and the general
principles of equity and justice should
guide the court, for the case presented
is without precedent on the books. The
counsel declares with great energy that
1t is now the law in view of our stat
ute that II the testator expresses the
wish in his will that what he has
given some of his children shall stand
as their share in his estate, that the
provision will be enforced, even if the
gifts were not technically advance
ments,' and even though the testator
makes no devise or bequest to any per-
in such case the general principles of
Jurisprudence. of justice and of equity.
shall be the guiding star that will move
the conscience of the court TO adopt an
one that is consistent with the entire
situation thus presented.
The court is admonished that 1t is
commanded to see to it that the tes-
tator,s wishes shall prevail as far as
possible, and that this is the cardinal
rule in all caes, including those where
it is obvious that the will can not have
effect to the full extent, for it is the
spirit of all this legislation that equal
tty shall be effected among children.
This is the very spirit of the law of
and to work out of the statute-out
of this transcript of the human af-
tlons-equality as decreed in the
statute of distributions through this
new law enacted by our Legislature.
To this earnest and eloquent plea the
response may be made, in the Ian
guage of the same counsel that how
ever absurd and without justification
the statute law may be. 1T is SO writ
ten; and 1T may be added. that the court
is not at liberty to change 1t by con-
s,
many expressions Of judges and text
writers. though confessedly not involv-
ing cases of this identical character,
tend in the direction of his view, yet
they are mere suggestions of sympa-
thy rather than statements of law.
Many comments are made in text
books and decisions as to the In
justice of the rule restricting the
statute to cases of total intestacy:
but, nevertheless. the law is so
written down and embodied in
many of the states of the union,
through express legislation, that
advancements are confined to cases
of intestate estates.
Counsel thinks. however that this
law is not embodied in the legisla ton
of California, and that there has as
yet arisen no case that presents for
direct adjudication under a statute
worded as is ours. in the light of the
past and present, the precise question
here involved. This case is unique of
its kind and will be a leading case on
this point, and the court is asked to
hew out path in what may be called
pioneer trail.
The difficulty with this argument is
that 1t asks the court to blaze trail
and to hew out path where there is
already a well defined road which the