페이지 이미지
PDF
ePub

such fulfillment 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.

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.

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.

1350. A devise or legacy given to more than one person vests in them as owners in common.

1351. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing.

CHAPTER III.

General Provisions Relating to Wills. Section

Section 1357. Nature and designation of 1367. Satisfaction. legacy.

1368. Legacies when due. 1358. Property subject to debts. 1369. Interest. 1359. Order of resort to estate 1370. Construction of these rules. for debts.

1371. Executor according to : 1360. Same, legacies.

tenor. 1361. Legacies how charged with 1372. Power to appoint is invalid. debts.

1373. Executor not to act till 1362. Abatement.

qualified. 1363. Specific devices and leg. 1374. Provisions as to revocation. acies.

1375. Execution and construction 1364. Heirs conveyance good un of prior wills not affected.

less will proved within four 1376. Laws governing validity years.

and interpretation. 1365. Possession of legatees. 1377. Liability of beneficiaries 1366. Bequests of interests.

for testator's obligations. 1357. Legacies are distinguished and designated, according to their nature, as follows:

1. A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator;

2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy;

3. An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy;

4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged;

5. All other legacies are general legacies.

1358. When a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in this code and the Code of Civil Procedure. 1873–234.

1359. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of debts, in the following order:

One. The property which is expressly appropriated by the will for the payment of the debts;

Two. Property not disposed of by the will;

Three. Property which is devised or bequeathed to a residuary legatee; Four. Property which is not specifically devised or bequeathed; and,

Five. All other property ratably. Before any debts are paid, the expenses of the administration, and the allowance to the family, must be paid or provided for. 1873--234.

1360. The property of a testator, except as otherwise specially provided in this code and the Code of Civil Procedure, must be resorted to for the payment of legacies, in the following order:

One. The property which is expressly appropriated by the will for the payment of the legacies.

Two. Property not disposed of by the will.

Three. Property which is devised or bequeathed to a residuary legatee.

Four. Property which is specifically devised or bequeathed. 1873– 235.

1361. Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator.

1362. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will.

1363. In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the superior court to sell the property devised and bequeathed in the cases herein provided. 1880 - 8.

1364. The rights of a purchaser or encumbrancer of real property, in good faith and for value, derived from any person claiming the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed, unless within four years after the devisor's death, the instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the superior court having jurisdiction thereof, or written notice of such devise is filed with the clerk of the county where the real property is situated. 1905–606.

1365. Where specific legacies are for life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the

benefit of the second legatee, or to the personal representative, as the case may be.

1366. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death.

1367. A legacy, or a gift in contemplation, fear, or peril of death, may be satisfied before death. 1873—235.

1368. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease.

1369. Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease.

1370. The four preceding sections are in all cases to be controlled by a testator's express intention.

1371. Where it appears, by the terms of a will, that it was the intention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named executor. · 1372. An authority to an executor to appoint an executor is void.

1373. No person has any power, as an executor, until he qualifies, except that, before letters have been issued, he may pay funeral charges and take 'necessary measures for the preservation of the estate.

1374. The provisions of this title in relation to the revocation of wills apply to all wills made by any testator living at the expiration of one year from the time it takes effect.

1375. The provisions of this title do not impair the validity of the execution of any will made before it takes effect, or affect the construction of any such will.

1376. The validity and interpretation of wills, wherever made, are governed, when relating to property within this state, by the law of this state, except as provided in section twelve hundred and eighty-five. 1905-607.

PIODE

1377. Those to whom property is given by w

vill

e for the obligations of the testator in the cases and to the extent prescribed by the Code of Civil Procedure.

TITLE VII

Succession.

Section

Section 1383. Succession defined.

1399. Heir advanced, dies before 1324. Intestate's estate, to whom decedent. passes.

1400. Husband's and wife's in1386. Succession in general.

heritance from each other. 1387. Illegitimate children, when 1401. Distribution of common to inherit.

property, death of wife. 1388. Same, successor.

1402. Same. Death of husband. 1389. Degrees of kindred, how 1403. Inheritance by representacomputed.

tion. 1390. Same, direct and collateral. 1404. Aliens, when may inherit. 1391. Same, line descending and 1405. Escheat property, generally. ascending.

1406. When property escheats to 1392. Same, in direct line.

state. 1393. Collateral line.

1407. Property escheated subject 1394. Relatives of half blood.

to charges. 1395. Advancements, part of dis- 1408. Successor liable decedent's tributive share.

obligations. 1396. Advancements, generally. 1409. Person convicted of mur1397. What are advancements.

der of a decedent not to 1398. Value of advancements, how succeed.

determined.

1383. Succession is the coming in of another to take the property of one who dies without disposing of it by will.

1384. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and to the possession of any administrator appointed by that court, for the purposes of administration. 1873—236.

1386. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure, subject to the payment of his debts, in the following manner:

1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children and to the lawful issue of any deceased child, by right of representation; but if there is no child of decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation. If the decedent leaves no surviving husband or wife, but leaves issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living,

or to the child living and the issue of the deceased child or children by right of representation;

2. If the decedent leaves no issue, the estate goes one half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one half goes in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister by right of representation. If the decedent leaves no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either is dead then to the other;

3. If there is neither issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister, by right of representation;

4. If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife;

5. If the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote;

6. If the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent and to the issue of any such other children who are dead, by right of representation;

7. If, at the death of such child, who dies under age, not having been married, all the other children of his parents are also dead, and any of them has left issue, the estate that came to such child by in heritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation;

8. If the deceased is a widow, or widower, and leaves no issue, and the estate, or any portion thereof, was common property of such decedent and his or her deceased spouse, while such spouse was living, such property goes in equal shares to the children of such deceased spouse and to the descendants of such children by right of representation, and if none, then one half of such common property goes to the father and mother of such decedent in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such decedent and to the descendants of any deceased brother or sister by right of representation, and the other half goes to the father and mother of such deceased spouse in equal shares, or to the survivor of them if either be dead, or if both be dead, then in equal shares to the brothers and sisters of such deceased spouse and to the descendants of any deceased brother or sister by right of representation.

If the estate, or any portion thereof, was separate property of such deceased spouse, while living, and came to such decedent from such spouse by descent, devise, or bequest, such property goes in equal shares to the children of such spouse and to the descendants of any deceased child by right of representation, and if none, then to the

« 이전계속 »