CHAPTER II. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PRO VISIONS. SECTION 1317. Testator's intention to be carried out. 1318. Intention to be ascertained from the will. 1319. Rules of interpretation. 1320. Several instruments are to be taken together. 1322. In what case devise not affected. 1323. When ambiguous or doubtful. 1324. Words taken in ordinary sense. 1325. Words to receive an operative construction. 1326. Intestacy to be avoided. 1327. Effect of technical words. 1328. Technical words not necessary. 1329. Certain words not necessary to pass a fee. 1330. Power to devise, how executed by terms of will. 1331. Devise or bequest of all real or all personal property, or both. 1332. Residuary clause. 1333. Same. 1334. " "Heirs," "relatives," "issue," ". 1335. Words of donation and of limitation. 1336. To what time words refer. 1337. Devise or bequest to a class. 1338. When conversion takes effect. 1339. When child born after testator's death takes under will. 1340. Mistakes and omissions. 1341. When devises and bequests vest. 1342. When cannot be divested. 1343. Death of devisee or legatee. 1344. Interests in remainder are not affected. 1345. Conditional devises and bequests. 1346. Condition precedent, what. 1347. Effect of condition precedent. 1348. Conditions precedent, when deemed performed. 1349. Conditions subsequent, what. 1350. Devisees, etc., take as tenants in common. Testator's intention to SEC. 1317. A will is to be construed according to the intention of the testator. Where his intention cannot be carried bave effect to its full extent, it must have effect as far as possible. Kidwell vs. Brummagim, 32 Cal., 436. SEC. 1318. In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testator's intention is to be ascertained from out Rules of interpretation. Several instruments are to be taken to. gether. Harmonizing various parts, In what case devise not affected. When ambiguous or doubtful. Words taken in ordinary sense. Words to receive an operative con. struction. Intestacy to be avoided. Effect of technical words. the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. SEC. 1319. In interpreting a will, subject to the law of this State, the rules prescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. SEC. 1320. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. SEC. 1321. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail. SEC. 1322. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. SEC. 1323. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any ref erence thereto, or recital thereof, in another part of the will. SEC. 1324. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. SEC. 1325. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. SEC. 1326. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy. SEC. 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. SEC. 1328. Technical words are not necessary to give Technical effect to any species of disposition by a will. SEC. 1329. The term " heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. SEC. 1330. Real or personal property embraced in power to devise, passes by a will purporting to devise the real or personal property of the testator. words not necessary. Certain necessary to words not pass a fee. all Power to deexecuted by terms of will. Devise or all real or any bequest of all personal real SEC. 1331. A devise or bequest of all the testator's real or personal property, in express terms, or in other terms denoting his intent to dispose of all his or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. property, or both. clause. SEC. 1332. A devise of the residue of the testator's Residuary estate, property, or real property, passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. SEC. 1333. A bequest of the residue of the testator's Same estate, property, or personal property, passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. "relatives," "descend aLts,” etc. SEC. 1334. A testamentary disposition to "heirs," "re- "Heirs," lations," "nearest relations," "representatives," "le al "issues,"" representatives" or "personal representatives," or "family," "issue," "descendants," "nearest" or "next of kin" of any person, without other words of qualification, and when the terms are used as words of donation and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the Title on Succession, in this Code. Norris vs. Hensley, 27 Cal., 39. SEC. 1335. The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, Words of donation and of limitation To what time words refer. Devise or bequest to a class. When conversion takes effect, When child born after testator's death takes under will. Mistakes and omis sions. When de vises and bequests vest. When can not be divested. Death of devisee or legateo. and not as a qualification of an estate given to the ances tor of such person. SEC. 1336. Words in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of possession. SEC. 1337. A testamentary diposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. SEC. 1338. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. SEC. 1339. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. SEC. 1340. When, applying a will, it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intention cannot be received. SEC. 1341. Testamentary dispositions, including de vises and bequests to a person on attaining majority, are presumed to vest at the testator's death. SEC. 1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. SEC. 1343. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place. SEC. 1344. The death of a devisee or legatee of a limited interest, before the testator's death, does not defeat the interests of persons in remainder, who survive the testator. Interests in remainder are not af fected. Conditional devises and SEC. 1345. A conditional disposition is one which depends upon the occurrence of some uncertain event, by bequests, which it is either to take effect or be defeated. precedent, SEC. 1346. A condition precedent in a will is one Condition which is required to be fulfilled before a particular dispo- what. sition takes effect. condition SEC. 1347. Where a testamentary disposition is made Effect of upon a condition precedent, nothing vests until the con- precedent. dition is fulfilled; except where such fulfilment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. SEC. 1348. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not literally, complied with. SEC. 1349. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. Conditions when deen precedent, ed performed. Conditions subsequent, what. SEC. 1350. A devise or legacy given to more than one Devisees, person vests in them as owners in common. SEC. 1351. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. Nore. The preceding chapter is, in a modified form, taken from the New York Civil Code, from Secs. 579 to 613, inclusive. We have had no general rules of construction adopted by our Legislature, and after the preparation of the first chapter of this Title it was thought best to adopt also these rules of construction. The usual course of noting each section from which they are taken, for economy in printing, is departed from in this chapter. etc., take as tenauts in common. Advanceademptions. ments, when |