Estate of Spreckels

Citations

• 6 Coffey 375

Syllabus

<p>Advancement—Definition.—An Advancement is a Provision made by a donor for a child or other heir during the donor’s lifetime, by gift of property on account of the share to which the heir would be entitled as heir after the donor’s death.</p> <p>Advancement—To be Considered Part of Decedent’s Estate.—Under the Civil Code any advancement made by a decedent to a child or other heir is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by the heir toward his share of the estate.</p> <p>Advancement—How Created.—Under the code such advancement can be created only by a writing showing an intent of the donor to create an advancement; and such intent must be exhibited in one of three ways: It .must appear in the instrument of transfer; or it must be acknowledged in writing by the heir, as an advancement; or it must be charged, in writing, by the donor, as an advancement.</p> <p>Advancement—Intent—Contemporaneous Writing. — To give the character of an advancement to a gift, the intent must appear by a writing made contemporaneously with the gift. Such character cannot be imparted, ex post facto, by a writing at a later date.</p> <p>Advancement—Change of Gift to Advancement.—A donor may change an advancement into an absolute gift without the knowledge or consent of the donee, but he cannot change an absolute gift into an advancement without the consent of the donee in writing.</p> <p>Advancement — Partial Intestacy — Code Changes.—An intent to alter a pre-existing law is' not to be inferred from a mere change of phraseology in a revision of prior statutes. Under the English statute, and under the statutes of many states of the Union, the rule is well settled that the doctrine of advancements is applicable only in cases of total intestacy. An examination of the history of the code and a comparison of code contexts show that the California codifiers did not intend to make such a distinction in the use