The San Francisco call., 1910-10-05

and Wisconsin. where the courts have
decided that the written charge must
! be simultaneous with the gift; but it is
contended that the Illinois statute is
! in conflict with the Interpretation
placed upon our statutes before we
adopted it, and that the Wisconsin
cases are in conflict with our own
| the asserted difference between our
statute and that of Illinois. this court
/ has already stated it's inability to per-
ceive wherein they differ So far as
Illinois is ned/assuming the sim
! ilarity of the Statutes. it is opposed to
the theory of advancement. Wiikin-
son V. Thomas. 12S ILL., 366
In the Wisconsin case, cited in the
/ oral argument. where.the statute was
identical with ours. the testator
charged in his books and so stated in
/ his Will certain gifts as advancements.
/ but the court decided that that was not
a statutory advancement. 1t refused to
adopt the contention of counsel upon
| this proposition, and said that the stat
ute clearly contemplated that deliv-
cry OF property by one to another, the
| latter having claims upon
the formers bounty, is not to be
! deemed an advancement unless it
Is given that character at the time
| laration in the writing making the
bestowal. or by an acknowledge
ment in writing at the time by the
! expression of the donor in respect
to the matter in charging the
property to the person receiving
the same: LudingtOn V. Patton,
] 121 Wis. 651.
In the other Wisconsin case, pub
lshed since the oral argument, the
main authorities relied upon here are
considered and the conclusion reached
that the charge in writing must be
| made at the time of the delivery of the
property. The court said that the man
ifest purpose of the statute in making
! "a 6a -1~f4 fv,@r
advancement was that it should be con-
temporaneous. Arthur V. Arthur, 126
n. w. $50.
This case refers to the Massachusetts
citations, remarking that the statute of
that state is the same as Wisconsin
and has been construed by the courts
of the latter state contrary to the con-
tention of the counsel for executors
and deViseeS in the case at bar. 1t cites
many authorities relied upon here and
concludes that the cases from other
jurisdictions are in harmony with the
decision and that the construction
placed upon the statute by the MaSsa-
chusetts court has been adopted by
Wisconsin. / have considered the crit
1cisms of counsel for executors upon
this latest opinion of the wisconsin
court that il does not cite or quote
cases from other Jurisdictions directly
to the point that the statute does not
require contemporaneOuS charge, and
tent analogy offered by the statute of
frauds for the construction of this
statute of advancements, and makes no
investigation into the Massachusetts
cases, which had from the first held
that the writing need not be contempo-
raneous; but the decision seems to have
examined those cases and to have fol-
lowed them to the point indicated,
saying that in the Pomeroy case
after reviewing the Massachusetts
case under similar statute it is
held that parole evidence is in
admissible to prove an advance
ment, and that all other evidence
than that prescribed in the statute
is excluded by implication. And in
the Ludington case it was held that
the charge in writing must be
made at the time of delivery of the
statute is mandatory and must be
Pomeroy, 90 wis. 2s2, 81 \. "; 80.
1t clearly contemplates that a de-
livery of property by one to an
other. the latter having claims
upon the formers bounty. is not to
be deemed an advancement unless
it is given that character at the
time of such delivery. either by a
declaration in the writing making
the bestowal or by an acknowl-
edgment in writing at the time by
the recipient of the bounty, or by
an expression of the donor in re-
spect to the matter in charging the
property TO the person receiving
the same
1t said further that it was unneces-
sary to go outside of it's own de-
ton cases were decisive of the propo-
sitions involved: but. nevertheless. 1t
did examine and consider those cases /
from other states having similar stat
utes, including Massachusetts. and |
concluded that they harmonized with |
it's own decisions.
Counsel for executor repeats that !
this is directly in the teeth of the !
Estate of TOmpkins. 132 Cal 173, upon /
which he relies with confidence What |
is the doctrine laid down in this case |
which it is claimed disposes of the 1
Wisconsin citation? That doctrine 4
seems to be that where the donor has 1
made an absolute gift there is no 1
method in which he can make that /
donation effective as advancement /
short of a legally executed will dis
posing of his property. This doctrine |
is stated in Woerner. in these words: I
The donor can so alter the char
acter of a gift or conveyance as
to enlarge the rights and privi-
leges of the recipient. but not so
to restrict them. Hence
father has the undoubted right to
change a debt owing to him into
an advancement and an advance