Mistakes and omissions. When devises and bequests vest. When can not be divested. Death of devisee or legatee. Interests in remainder are not affected. Conditional devises and legacies. Conditions precedent. Conditions subsequent. Legatees take as ten ants in common. Advance ments when bequest to a class vests in right or in possession, takes, if answering the description of the class; 18. When, applying the 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 parol evidence; but evidence of the declarations of the testator as to his intention cannot be received; 19. Devises and bequests, including devises and bequests to a person on attaining majority, vest at the testator's death; 20. A devise or bequest, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose; 21. If the devisee or legatee dies during the lifetime of the testator, the testamentary disposition fails, unless an intention appears to substitute some other in his place; 22. 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; 23. A conditional devise or legacy is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. If the condition is to precede the devise or legacy, nothing vests until performance; except where the condition is impossible, in which case it vests, unless the condition was the sole motive of the bequest, and the impossibility was unknown to the testator, or arose by an unavoidable event subsequent to the execution of the will; 24. Conditions precedent are to be deemed performed, when the intention of the testator has been substantially, though not literally, complied with; 25. A subsequent condition is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event; 26. Legacies given to more than one person vest in them as tenants in common; 27. Advancements or gifts are not to be taken as adempademptions tions of general legacies, unless such intention is expressed by the testator in writing. § 485. Legacies are distinguished and designated, ac- Nature and cording to their nature, as follows: designation of legacies. 1. Legacies of a particular thing, specified, and distin- Specific. guished from all others of the same kind belonging to the testator, are specific. If such legacy fails, resort cannot be had to the other property of the testator; tive. 2. Legacies are demonstrative when the particular fund Demonstraor personal property is pointed out from which they are 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. Annuities are bequests of certain specified sums Annuities. 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 Residuary. after all the bequests of the will are discharged; 5. All other legacies are general legacies. of 486. When the decedent died intestate, the property, except such as is otherwise disposed of under section 509 of this Code, and such as is exempt under section' the CODE OF CIVIL PROCEDURE, is to be resorted to, in the following order, in payment of debts: 1. Personal property; 2. Real property other than estates of freehold; 3. Estates of freehold. The reference is to section 83 of Appendix D. 487. In the case of a testator, the same is to be resorted to, in the following order, for the payment of debts and legacies: 1. Personal property excepting such as is expressly exempted in the will; 2. Real property expressly devised to pay debts or legacies, where the personal property is exempted in the will, or where the personal property which is not exempted is insufficient; 3. Real property which is not effectually devised; General. Lega cies, how charged with debts. Abatement. Specific devises and legacies. Heir's conveyance will is pro four years. legacies; but though real property be charged with the payment of legacies, the personal property is not to be exonerated; 5. The following property, ratably: real property, devised without being charged with debts or legacies, and specific and demonstrative legacies; 6. Personal property expressly exempted in the will. § 488. In the application of the personal property to the payment of debts, the following order must be observed, unless a different intention is expressed in the will. 1. Residuary legacies; 2. General legacies; 3. Legacies given for a valuable consideration or the relinquishment of dower, or some right or interest; 4. Specific and demonstrative legacies. Legacies to husband, widow or kindred of any class are chargeable only after legacies to persons not related to the testator. § 489. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. § 490. In a specific devise or legacy the title passes by the will, but, in case of legacies, possession can only be obtained from the personal representative; and he may be authorized by the surrogate to sell the property devised or bequeathed, in the cases herein provided. § 491. The title to real property, of a purchaser in good good unless faith, for a valuable consideration, derived from any perved within son claiming the same by succession, is not impaired by any devise made by the decedent from whom succession is claimed, unless the instrument containing such devise, is duly proved as a will, and recorded in the office of the surrogate having jurisdiction thereof, or unless written notice of such devise is filed with the clerk of the county where the real property is situated, within four years after the devisor's death. The provisions of the Revised Statutes, (1 R. S., 748, 3,) from which this section is taken, made the following exceptions to the foregoing rule: 1. Where the devisee shall have been within the age of twenty-one years, or insane, or imprisoned, or a married woman, or out of the state at the time of the death of such testator; or, 2. Where it shall appear that the will or codicil containing such devise, shall have been concealed by the heirs of such testator, or some one of them. In which several cases, the limitation contained in this section shall not commence, until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee, or his representative, or to the proper surrogate." These disabilities are such as almost to destroy the value of the provision, and the commissioners have therefore omitted them. As, however, the probate is often delayed by litigation, a provision that notice may be filed in the office of the county clerk, with equal effect, has been added. of legatees. § 492. Where specific legacies are for life only, the first Possession 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. The following sections are new. interest. § 493. In case of a bequest of the interest or income of Bequest of a certain sum or fund, the interest accrues from the testator's death. peril tion. Satisfac § 494. A legacy or a gift in contemplation, fear or peril of death may be satisfied. when due. § 495. Legacies are due and deliverable, at the expira- Legacies tion of one year after the testator's decease. Annuities commence at the testator's decease. § 496. Legacies bear interest from the time when they Interest. are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease. § 497. The four preceding sections are in all cases to be Construc controlled by the testator's express intention. tion of these rules. Executor Power to appoint is invalid. Executor not to act $498. Where it appears, by the terms of the 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. 499. An authority to an executor to appoint an executor is invalid. § 500. No person has any power, as an executor, until till qualified he qualifies, except that before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. Executor of an executor. From 2 R. S., 71, §§ 15, 16. § 501. No executor of an executor, as such, has any power over the estate of the first testator. 2 R. S., 71, § 17; 448, § 11. Provisions as to revocations. Execution and con CHAPTER III. GENERAL PROVISIONS. SECTION 502. Provisions as to revocations. 503. Execution and construction of prior wills not affected. 504. "Wills" includes codicils. 505. The law of what place applies. 506. Liability of beneficiaries for testator's obligations. § 502. 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 this article takes effect. 2 R. S., 68, § 76. § 503. The provisions of this title do not impair the struction of validity of the execution of any will made before this prior wills not affected. article takes effect, or affect the construction of any such "Will" includes codicils. will. 2 R. S., 68, § 87. $504. The term "will," as used in this Code, includes all codicils as well as wills. 2 R. S., 68, § 77. |