ments constitute part of distributive share.

1395. Any estate, real or personal, given by the Advancedecedent in his lifetime, as an advancement to any child, or other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent.

NOTE.-Stats. 1850, p. 221, Sec. 5.
If the father,
during his lifetime, on the occasion of the marriage or
settlement in life or otherwise, has made any advance-
ments to any of his children toward their distributive
share in his estate this must be reckoned in making the
distribution. See Sec. 1686 (1⁄2 273), Co. Civ. Pro. Cal.

In the case of Hall vs. Frederick, 2 P.Wms., p. 356,
this rule applied alone to the father, but the text makes
no distinction. Such advancements affect the repre-
sentatives of the one receiving them.-Proud vs. Tur-
ner, 2 P. Wms., p. 560. Extrinsic evidence is receivable
to show the intention of the decedent as to ademptions.
Red. L. of Wills (ed. 1864), p. 647, Sec. 50; Chapman
vs. Salt, 2 Vernon, p. 646; Rosewell vs. Bennett, 3 Atk.,
p. 77; Pile vs. Pile, 1 Ch. R., p. 199; Ellison vs. Cook-
son, 2 Br. C. C., p. 307; S. C. 3, id., p. 61.

1396. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent.

NOTE.-Stats. 1850, p. 221, Sec. 6; see, also, Red. L. of Wills, pp. 908-10 and notes, and cases there cited. In the case of Edwards vs. Freeman, 2 P.Wms., pp. 435-45, the subject is thoroughly discussed. An annuity provided to take effect at the death of the father. (Proud vs. Turner, 2 P. Wms., p. 560). If the provision be contingent, it is reckoned an advancement after becoming absolute. This question is considered at length by the author first cited, supra, but the text is its own rule, sufficiently clear, and easily understood.

Advance

ments,

when too not enough.

much, or

What are advancements.

Value of advance

determined

1397. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir.

NOTE.-Stats. 1850, p. 221, Sec. 7. See authorities cited in the preceding note.

1398. If the value of the estate so advanced is ments, how expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained.

When heir,
advanced
to, dies
before
decedent.

Inheritance of husband and wife

from each other.

NOTE.-Stats. 1850, p. 221, Sec. 8. See authorities and cases cited in the note to Sec. 1396, ante.

1399. If any child, or other lineal descendant receiving advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them.

NOTE.-Stats. 1850, p. 221, Sec. 9. Advancement to the child (heir) "will affect the representatives of such child who come in after his decease and take his place."— Red. L. of Wills (ed. 1866,), Part II, p. 908, Subd. 19; Proud vs. Turner, 2 P. Wms., p. 560; see notes to Secs. 1395, 1396, ante.

1400. The provisions of the preceding sections of this Title, as to the inheritance of the husband and wife from each other, apply only to the separate property of

the decedents.

NOTE.-Stats. 1850, p. 221, Sec. 10.

1401. Upon the death of the wife, the entire community property, without administration, belongs to the

11

tion of the

common

property in

death

the wife.

surviving husband, if he shall not have abandoned and Distribu-
lived separate and apart from her; but if the husband
shall have abandoned his wife, and lived separate and of
apart from her, the half of the community property,
subject to the payment of the debts chargeable to it,
is at her testamentary disposition, and in the absence
of such disposition, goes to her descendants or heirs at
law, exclusive of her husband.

NOTE.-Stats. 1863-4, p. 363, Sec. 1. Unless the
contrary appears, all property acquired during cover-
ture is presumed to be (community) common prop-
erty.-Althof vs. Conheim, 38 Cal., p. 230. Before
the adoption of the Codes the term " common prop-
erty" was almost invariably used to signify prop-
erty belonging to the community relation of husband
and wife; the term used in the Codes is " commu-
nity," in the place of "common" property. On the
subject of what is community property, see, generally,
Buchanan's Estate, 8 Cal., p. 507; Johnson vs. John-
son, 11 id., p. 201; Smith vs. Smith, 12 id., p. 216;
Meyer vs. Kinzer, 12 id., p. 247. Approved as to com-
mon (community) property, in Scott vs. Ward, 13 id.,
p. 470; Pixley vs. Huggins, 15 id., p. 131; Kohner vs.
Ashneauer, 17 id., p. 581; Benton vs. Lies, 21 id., p. 91;
Adams vs. Knowlton, 22 id., p. 288; Tustin vs. Faught,
23 id., p. 241; Landers vs. Bolton, 26 id., p. 420.
to presumption" approved, in Smith vs. Smith, 12 id.,
p. 224; Mott vs. Smith, 16 id., p. 557; McDonald vs.
Badger, 23 id., p. 398; Ramsdell vs. Fuller, 28 id., p.
42; Peck vs. Vandenberg, 30 id., p. 42; see, also, Secs.
162, 163, 164, ante, and notes.

"As

tion of

common death of husband.

property on

the

1402. Upon the death of the husband, one half of Distributhe community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the

Inherit

ance by tion.

death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration.

NOTE.-Stats. 1863-4, p. 363, Sec. 1. Community property liable for community debts, etc.-Estate of Tompkins, 12 Cal., p. 114. And for husband's debts.Adams vs. Knowlton, 22 Cal., p. 283. Dower is done away with by our statute.-Beard vs. Knox, 5 Cal., p. 252. Money consideration for deed to wife, considered in Mott vs. Smith, 16 Cal., p. 533. Increase in community property.-Lewis vs. Lewis, 18 Cal., p. 654. Difference between original stock and the stock as increased, constitutes the community property. By Mexican law, product of wife's labor community property.-Fuller vs. Ferguson, 26 Cal., p. 546. Husband's power over community property.-See Beard vs. Knox, 5 Cal., p. 252; Smith vs. Smith, 12 Cal., p. 216. Husband's power absolute, wife's in expectancy.-Van Maren vs. Johnson, 15 Cal., p. 308. This was prior to passage of Act referred to first supra. Of course the rule as stated in the text is different.

1403. Inheritance or succession "by right of reprepresenta resentation" takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents.

Aliens may inherit,

how.

NOTE.-Stats. 1850, p. 221, Sec. 11. The heir represents his ancestor.-Bacon Abr., "Heir and Ancestor" (A). Representation was unknown to the Romans, and was invented by the commentators and doctors of the civil law.-Toullier Dr. Civ. Fr., liv. 3, t. l. c. 3, n. 180; see Ayliffe Pand., p. 397; Dalloz Dict., "Succession," Art. 4, Sec. 2; Bouvier L. Dict., Title "Representation of Persons;" see Sec. 1383, ante, and note; also, Sees. 698-739 and notes, ante, on the subject of "Posthumous Child."

1404. Resident aliens may take in all cases by when, and succession as citizens; and no person capable of succeeding under the provisions of this Title is precluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by