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CHAPTER III.

GENERAL PROVISIONS.

SECTION 1357. Nature and designations of legacies.

1. Specific.

2. Demonstrative.

3. Annuities.

4. Residuary.

5. General.

1358. Order of sale in case of an intestate.

1359. Order of sale in case of a testator.

1360. Legacies, how charged with debts.

1361. Same.

1362. Abatement.

1363. Specific devises and legacies.

1364. Heir's conveyance good, unless will is proved within four

years.

1365. Possession of legatees.

1366. Bequest of interest.

1367. Satisfaction.

1368. Legacies, when due.

1369. Interest.

1370. Construction of these rules.

Naturo and designations

1371. Executor according to the tenor.

1372. Power to appoint is invalid.

1373. Executor not to act till qualified.

1374. Provisions as to revocations.

1375. Execution and construction of prior wills not affected.

1376. Wills" include codicils.

1377. The law of what place applies.

1378. Liability of beneficiaries for testator's obligations.

SEC. 1357. Legacies are distinguished and designated, of legacies, according to their nature, as follows: Specific.

Demonstrative.

Annuities.

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 Residuary. after all the bequests of the will are discharged. 5. All other legacies are general legacies.

SEC. 1358. When a person dies intestate, his property, except such as is otherwise disposed of under this Code, and under Chap. V, Tit. XI, of the CODE OF CIVIL PROCEDURE, and exempt from execution therein, 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.

SEC. 1359. The property of a testator, with the exception specified in the last section, 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.

4. Property, real or personal, charged with debts or legacies; but though real property is 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. Cal. C. C. P., Tit. XI, Chap. VII.

SEC. 1360. In the application of the personal property of a decedent to the payment of debts, legacies must be charged in the following order, unless a different intention is expressed in the will:

1. Residuary legacies.

2. General legacies.

3. Legacies given for a valuable consideration, or for the relinquishment of some right or interest.

4. Specific and demonstrative legacies.

General.

Order of sale intestate

in case of an

Order of sale testator.

in case of a

Legacies,

how charged

with debts.

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

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

SEC. 1363. 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 Judge of the Probate Court to sell the property devised and bequeathed, in the cases herein provided.

SEC. 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 the instrument containing such devise is duly proved as a will, and recorded in the office of the Clerk of the Probate Court 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.

N. Y. C. C., Sec. 621.

SEC. 1365. Where specific legacies are for life only, the first legatee must sign and deliver to the second lega tee, 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.

N. Y. C. C., Sec. 622.

SEC. 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.

N. Y. C. C., Sec. 623.

SEC. 1367. A legacy, or a gift in contemplation, fear or peril of death, may be satisfied.

when due,

SEC. 1368. Legacies are due and deliverable at the ex- Legacies. piration of one year after the testator's decease. Annuities commence at the testator's decease.

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

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

SEC. 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.

SEC. 1372. An authority to an executor to appoint an executor is void.

SEC. 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.

SEC. 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.

SEC. 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.

of these rules.

Executor

according to

the tenor.

Power to appoint is invalid.

Executor not qualified.

to act till

Provisions tione.

as to revoca

Execution struction of

and con

prior wills

not affected.

SEC. 1376. The term "will," as used in this Code, in- "Wills" includes all codicils as well as wills.

Stats. 1850, 177, Sec. 24.

SEC. 1377. Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this State, by the law of this State; when relating to personal property, by the law of the testator's domicile.

clude cod. icile.

The law of applies.

what place

Liability of beneficiaries

SEC. 1378. Those to whom property is given by will are liable for the obligations of the testator in the cases obligations. and to the extent prescribed by the CODE OF CIVIL PRO

for testator's

CEDURE.

NOTE. The three chapters comprising the Title on Wills embraces all the laws of our State relating to the subject not contained in Tit. XI of the Code of Civil Procedure; as also many of the provisions of the Civil Code of New York on the corresponding subject, from Sec. 614 to Sec. 636, inclusive. This somewhat enlarges the space occupied heretofore by our laws, but space is not to be considered when the provisions embodied are so salutary and so obviously well digested and prepared. Practical experience may demonstrate the usefulness of other provisions, but those given are suppoed to provide for every conceivable contingency.

Succession

TITLE VII.

SUCCESSION.

SECTION 1384. Succession defined.

1385. Who first succeeds to possession of estates not devised, and

for what purpose.

1386. Succession to and distribution of property.

1387. Illegitimate children to inherit in certain events.
1388. The mother is successor to illegitimate child.

1389. Degrees of kindred, how computed.

1390. Advancements constitute part of distributive share.
1391. Advancements, when too much, or not enough.

1392. What are advancements.

1393. Value of advancements, how determined.

1394. When heir advanced to dies before decedent.

1395. Inheritance of husband and wife from each other.

1396. Distribution of the common property in case of death of the

wife.

1397. Distribution of common property on death of the husband. 1398. Inheritance by representation.

1399. Aliens may inherit, when and how.

1400. Succession not claimed, Attorney-General to cause to be

sold, and proceeds deposited.

1401. When the property and estate escheat to the State.
1402. Property escheated subject to charges as other property.
1403. Successor liable for decedent's obligations.

SEC. 1384. Succession is the coming in of another to defined. take the property of one who dies without disposing of it

by will.

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