« 이전계속 »
1302. A charge or encumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or encumbrance.
1303. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession.
1304. If the instrument by which an alteration is made in the testator's interest in a thing previously disposed of by his will expresses his intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of the testamentary disposition, it operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency by reason of which they do not take effect.
1305. The revocation of a will revokes all its codicils.
1306. Whenever a testator has a child born after the making of his will, either in his lifetime or after his death, and dies leaving such child unprovided for by any settlement, and neither provided for nor in any way mentioned in his will, the child succeeds to the same portion of the testator's real and personal property that he would have succeeded to if the testator had died intestate. But such succession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. 1905606.
1307. When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, has the same share in the estate of the testator as if he had died intestate, and succeeds thereto as provided in tne preceding section. But such succession does not impair or affect the validity of any sale of property made by authority of such will in accordance with the provisions of section fifteen hundred and sixty-one of the Code of Civil Procedure. 1905–606.
1308. When any share of the estate of a testator is assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same must first be taken from the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken from all the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devisee, legacy, or provision, may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted.
1309. If such children, or their descendents, so unprovided for, had an equal proportion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they take nothing in virtue of the provisions of the three preceding sections.
1310. When any estate is devised or bequeathed to any child or other relation of the testator, and the devisee or legatee dies before the testator, leaving lineal descendants, or any such child or other relation is named in a will as a devisee or legatee, and is dead at the time the will is executed, but leaves lineal descendants surviving the testator, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. 1921–107.
1311. Every devise of land in any will conveys all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that he intended to convey a less estate.
1312. Any estate, right, or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms, devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which such testator was entitled to devise at the time of his decease. 1873--233.
1313. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy and each of them shall be valid; provided, that no such devise or bequest shall collectively exceed one-third of the estate of the testator, leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law; and provided, further, that bequests and devises to the state, or to any state institution, or for the use or benefit of the state or any state institution or to any educational institution which is exempt from taxation under section one a of article thirteen of the constitution of the State of California, or for the use or benefit of any such educational institution, are excepted from the restrictions of this section; provided, however, that nothing in this section contained shall apply to bequests or devises made by will executed at least six months prior to the death of a testator who leaves no parent, husband, wife, child or grand child, or when all of such heirs shall have by writing, executed at least six months prior to his death, waived the restrictions contained herein. 1919–324.
Interpretation of Wills, and Effect of Various Provisions. Section
Section 1317. Testator's intention to be 1335. Words of donation, limitacarried out.
tion. 1318. Intention ascertained from 1336. To what time words refer. will.
1337. Devise or bequest to a class. 1319. Rules of interpretations. 1338. When conversion takes ef1320. Several instruments taken
1339. Child born after testator's 1321. Harmonizing various parts. death takes under will, 1322. What case, devise not af when. fected.
1340. Mistakes and omissions. 1323. When ambiguous or doubt- 1341. When devises and bequests ful.
vest. 1324. Words taken in ordinary 1342. When cannot be divested. sense.
1343. Death of devisee and leg1325. Words to receive an opera
atee. tive construction.
1344. Interest in remainder not 1326. Intestacy to be avoided.
affected. 1327. Effect of technical words. 1345. Conditional devises and be1328. Technical words not nec
1346. Conditions precedent, what. 1329. Certain words not neces- 1347. Conditions precedent, gensary to pass fee.
erally. 1330. Power to devise, how exe- 1348. Conditions precedent, percuted.
formed, when so deemed. 1331. Devise all real and personal 1349. Conditions subsequent. property generally.
1350. Devisees, etc., take as ten1332. Residuary clause.
ants in common. 1333. Same.
1351. Advancement, when ademp1334. Heirs, relatives, issue, etc.
tion. 1317. A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.
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 the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.
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.
1320. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.
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.
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.
1323. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will.
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.
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.
1326. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.
1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. 1905–-606.
1328. Technical words are not necessary to give effect to any species of disposition by a will.
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.
1330. Real or personal property embraced in a power to devise, passes by a will purporting to devise all the real or personal property of the testator.
1331. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was enttiled to dispose of by will at the time of his death.
1332. A devise of the residue of the testator's 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. 18734234.
1333. A bequest of the residue of the testator's 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. 1873—234.
1334. A testamentary disposition to "heirs," "relations,” “nearest relations,” “representatives,” “legal 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.
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, and not as a qualification of an estate given to the ancestor of such person.
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.
1337. A testamentary disposition to a class includes every person answering the description at the testator's death; 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.
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.
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.
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 intentions cannot be received.
1341. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death.
1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose,
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, except as provided in section thirteen hundred and ten. 1873—234.
1344. The death of a devisee or legatee of a limited interest before the testator's death dos not defeat the interests of persons in remainder, who survive the testator.
1345. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated.
1346. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect.
1347. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where