Construction by Court-In construing a legacy, courts lean in favor of a general legacy. Where they are clearly defined, they will be given their legal effect: Ludlam's Estate, 13 Pa. 188; but, unless clearly so intended, will not be so construed: Corbin v. Mills, 19 Gratt. (Va.) 438. The reason for thus leaning against specific legacies is stated as follows, in Kunkel v. Macgill, 56 Md. 120: “If the legacy is to be considered specific, then in the event of the testator's parting with the thing or property bequeathed, or if from any cause it should be lost or destroyed, the legacy fails. Then again, such legacies are not liable to abatement with general legacies, nor are they liable to contribution toward the payment of debts. And hence the inclination on the part of the courts to construe legacies as general, unless a contrary intention plainly appears."

Mortgage as Revocation of Devise.-A devise is not revoked by a mortgage to the devisee: Baxter v. Dyer, 5 Ves. Jr. 656, overruling Harkness v. Bayley, 1 Prec. Ch. 514. In McTaggart v. Thompson, 14 Pa. 149, however, the mortgage of an estate devised was considered a revocation pro tanto.

A mortgage executed by a testator after making his will does not manifest an intention to revoke, unless the will or the instrument creating the charge shows such to have been his intention, under an Alabama statute, and any interest or right of redemption or other right remaining in the testator at his death would fall within the operation of the bequest: Stubbs v. Houston, 33 Ala. 555.

In Yardley v. Holland, L. R. 20 Eq. 428, the court held that the purchase by the testator of the equity of redemption revoked the devise by his will, not only of the beneficial interest, but of the legal interest in the mortgaged property.

Effect of Codicil on Adeemed Legacies. The authorities uniformly hold that the confirmation of a will by a codicil does not set up a legacy which has been adeemed since the execution of the will: Ware v. People, 19 Ill. App. 196; Howze v. Mallett, 4 Jones Eq. (N. C.) 194; Alsop's Appeal, 9 Pa. 374; Garrett's Appeal, 15 Pa. 212; Montague v. Montague, 15 Beav. 565; Cowper v. Mantell, 22 Beav. 223; Powys v. Mansfield, 3 Mylne & C. 359; Booker v. Allen, 2 Russ. & M. 270. See, also, Sidney v. Sidney, L. R. 17 Eq. 65.

In Hopwood v. Hopwood, 22 Beav. 488, a testator, in 1829, directed his trustees to raise £5,000 for his son; in 1835, on his son's marriage, he covenanted to pay £5,000 to the trustees of his son's settlement. In 1850, after referring to the legacy of £5,000 to his son, he directed his trustees to raise a further sum of £7,000. It was held that the first bequest was not adeemed, and that all three were payable; and that it was a question of intention in making the

codicil.

As to a codicil rebutting the presumption of ademption, see De Groff v. Terpenning, 14 Hun (N. Y.), 301.

Where a testator, having given a general legacy, by a subsequent instrument makes it specific, the ademption of the specific legacy, without more, will not set up the general legacy: Hertford v. Lowther, 7 Beav. 107.

IN THE MATTER OF THE ESTATE OF GEORGE W. GRANNISS, DECEASED.

[No. 24,305; decided October 9, 1902.]

Wills-Constructions Which Lead to Intestacy.-Such an interpretation should, if reasonably possible, be placed upon the provisions of a will as will prevent intestacy, total or partial. Ordinarily the presumption is that the testator designed to dispose of his entire estate, and the instrument will be so construed, unless the contrary is clearly shown by its terms or by evidence.

Wills are to be Liberally Construed so as to Effectuate the Intention of the testator, and it is the duty of courts to search for a construction that will carry such intention into effect.

Wills. A Devise or Bequest of the "Residue" passes all the property which the testator was entitled to devise or bequeath at the time of his death not otherwise effectually disposed of by his will, unless it is manifest from the context or from the provisions of the will that the testator used the word in some more restricted sense.

Wills Residuary Clause-Declaration that Property is Separate.— A will making certain bequests, and giving all the residue of the property to the daughter of the testator, passes to her all the property which he was entitled to dispose of at the time of his death and not otherwise effectually devised or bequeathed; and such residuary gift is not affected by a subsequent declaration in the will that all the estate therein devised is separate property.

Community Property.-Where the Only Earnings of the Testator, after his second marriage, were $900 during a period of eight years, while the appraised value of his estate was over $88,000, it was in this case held, following the rule that there is no presumption that the testator supported the family out of his separate estate and preserved the community funds intact, and considering the smallness of the sum earned as compared with the value of the whole estate, that the entire estate was separate property.

Community Property.-The Sums Gained by Two Investments in this case of a portion of the testator's separate property in Pacific Mail stock were held not "earnings," but belonged to the category of "rents, issues and profits," and formed a part of his separate property.

Wills Rules of Interpretation.-Many of the rules which courts have adopted as guides in ascertaining the intention of testators assume such intention from words and phrases, where often it is very doubtful whether they were used with any intelligent application of the legal meaning given to them. But these rules have become, in many cases, rules of property, and work out in a majority of instances results as nearly just as may be. It is better to adhere to them in their integrity than to permit exceptions upon slight grounds.

Wills Construction of Residuary Clauses.-The rule that, in the interpretation of wills, residuary clauses are to be given a broad rather than a narrow interpretation, has a stronger foundation in natural reason than have some of the other rules adopted by courts.

Application for final distribution.

F. S. Brittain, for Mrs. Elizabeth I. Granniss, widow.

Henry H. Reid, for Harriet G. Center, executrix.

COFFEY, J. This application is submitted upon the records and an agreed statement of facts in the terms of a stipulation that (1) said decedent died in the city and county of San Francisco, state of California, on the twenty-sixth day of January, 1901, and was at the time of his death a resident of said city and county; (2) he left him surviving his widow, Elizabeth I. Granniss, and his only child, Harriet G. Center; (3) his last will and testament, dated January 8, 1894, and a codicil thereto dated August 20, 1900, were duly admitted to probate by this court on February 18, 1901; (4) that the first wife of decedent, mentioned in his will dated January 8, 1894, died on the twelfth day of September, 1890; (5) he was married to said Elizabeth I. Granniss on December 27, 1892; (6) on the said twelfth of September, 1890, said decedent was the owner of an unimproved and unproductive lot of land situated on the south side of Vallejo street, between Leavenworth and Hyde streets, having a frontage of one hundred and thirty-seven and one-half feet, with a uniform depth of one hundred and thirty-seven and one-half feet, the assessed valuation of which was $4,175, for the fiscal year 1890-91, and $5,840 for the fiscal year 1900-01; also an undivided one-half interest in a lot of land, with the improvements thereon, situated on the southwest corner of Front and

Merchant streets, in said city and county of San Francisco, having a frontage of twenty-six and one-half feet on Front street, the assessed valuation of which was $5,685 for the fiscal year 1890-91, and $5,350 for the fiscal year 1900-01, the gross rental for which for the past twenty months has been and now is $50 per month; also lots 1 to 14, both inclusive, of Stratton survey in the city of Alameda, county of Alameda, state of California, of the assessed valuation of $50; the promissory note of the Pacific Improvement Company for the sum of $100,000; the sum of $14,152.21 in money, besides personal property, such as household and office furniture and jewelry, worth about $1,000; (7) of said property he gave to his daughter, Harriet G. Center, the real estate above mentioned situated on Front street and Vallejo street in said city and county, by deed dated December 8, 1892, and recorded on the same day; that on August 20, 1892, he gave to said Harriet G. Center $15,000 toward constructing and furnishing a house for her, and on December 31, 1892, the further sum of $5,000 for the completion of the same; (8) subsequent to September 12, 1890, and up to December 27, 1892, the gross income of decedent amounted to $27,400, consisting of $12,500 interest upon said $100,000, $2,700 rent of said Front street property, being at the rate of $100 per month, gross rental; $2,100 for services to General George W. Cullum, to wit, $100 per month up to and including May, 1892; $100 for services to Frederick Billings, and a legacy of $10,000 from the estate of Frederick Billings, deceased, on December 16, 1890; (9) from December 27, 1892, until his death, the gross income of decedent was $157,949.66, as follows: From the trustees of the estate of Frederick Billings, deceased, for services, the sum of $912.50, to wit: $100 each year, for the years 1893-98; $150 a year for the years 1899-1900, and $12.50 for the month of January, 1901; interest on said Pacific Improvement Company's note to September 25, 1897, $28,763.88; the principal of said note, $100,000 on September 25, 1897; interest of fifty $1,000 bonds of the Northern California Railway Company, and twentyfive $1,000 Contra Costa Water Company bonds, amounting to $9,375; besides the sum of $5,000, a legacy from the estate of George W. Cullum, deceased ($3,500 of which he received May 2, 1893, and $1,500 on May 2, 1894); the sum of $1,440.35

profit from the purchase of one thousand shares of Pacific Mail Steamship Company's stock on October 19, 1893, for $15,434.65, and the sale thereof on November 22, 1893, for $16,875, and $5,457.93 profit from the purchase of one thousand shares of Pacific Mail Steamship Company's stock on January 26, 1894, for $16,929.57, and the sale thereof on April 2, 1895, for $22,387.50; (10) on February 6, 1896, decedent purchased seventeen Los Angeles Light Company bonds for $17,170, and on February 11, 1896, gave the same to said Harriet G. Center, and on October 14, 1897, he purchased eight Los Angeles Light Company bonds for $8,020, and on October 16, 1897, gave the same to said Harriet G. Center; (11) on September 8, 1898, decedent purchased fifty $1,000 Northern California Railway bonds, bearing interest at five per cent per annum, payable semi-annually on December 1st. and June 1st of each year, for $47,500, and between October 8 and October 18, 1898, he purchased twenty-five $1,000 Contra Costa Water Company bonds for $25,205, being the same bonds of which he died possessed and from which he received interest as herein before stated; (12) on the twentyfifth day of September, 1887, decedent deposited in his general account in the Bank of California, there being then a balance to his credit, $7,425, the sum of $101,500 derived from principal and interest of said Pacific Improvement Company note, and thereafter, between the said twenty-fifth day of September, 1897, and the nineteenth day of October, 1898, he had at all times more than said sum of $7,425.44 to his credit in said deposit; (13) on said twenty-fifth day of September, 1897, decedent was indebted to the trustees of Frederick Billings, deceased, in the sum of $1,203.97, and to the New York Cancer Hospital, in the sum of $479.94, money's had and received by him for their use; (14) subsequent to the said twenty-fifth day of September, 1897, the only deposit in bank made by decedent was on the third day of December, 1900, upon which last-named date he deposited in the Bank of California the sum of $1,250; (15) from the twentyfifth day of September, 1897, to the first day of December, 1898, the expenditures of decedent amounted to $5,754.74, in addition to those for the purchase of eight Los Angeles Light Company bonds for $8,020 on October 14, 1897, fifty