condition

SEC. 1347. Where a testamentary disposition is made Effect of upon a condition precedent, nothing vests until the condi- precedent. tion is fulfilled; except where 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.

A clause in a will was in substantially the following form: "I give and be queath to my son, Elisha J., my real estate (describing it), during his natural life, and after his decease, to descend to his heirs, provided, however, that the said Elisha J. shall provide a home for his sister Oriel, till her marriage, and then to give her an outfit equal to what her sisters have received at their marriage, provided, however, that if the said Elisha J. does not accept of the provisions of this will within eighteen months from the date hereof, then said property to revert to his sister Oriel:" Held, while by the terms of the will, an estate was devised over to the daughter, upon the noncompliance with the second proviso or condition by the son, that the first condition did not thus operate as a limitation upon the estate devised to him and his heirs, and, therefore, that a breach or non-performance of such condition, did not have the effect of divesting his title under the will, but merely operated as a trust or charge upon the estate for its performance. Woodward v. Walling, 31 Iowa; Pac. Law Rep. vol. IV, p. 49.

precedent

SEC. 1348. A condition precedent in a will is to be deemed Conditions performed when the testator's intention has been substan- when tially, though not literally, complied with.

deemed performed.

subsequent,

SEC. 1349. A condition subsequent is where an estate or Conditions interest is so given as to vest immediately, subject only to what. be divested by some subsequent act or event.

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

etc., take as tenants in common.

as Advance

ments,

SEC. 1351. Advancements or gifts are not to be taken ademptions of general legacies, unless such intention is ex- when pressed by the testator in writing.

See 2 Redf. on Wills, 908 et seq. (ed. 1866), and cases cited there.

In no case can a child, born after the making of a will by his father, recover of any brother or sister, born before the will was made any portion of any advancement made by his father in his lifetime, to such brother or sister. Sanford v. Sanford, 61 Barb.; Pac. Law Rep. vol. IV, p. 42.

When a parent conveys land to his child without asking or receiving any consideration therefor, the presumption is that it is an advancement to the child, though the deed recites a money consideration, and contains an acknowledgment of the payment of it. Ibid.

ademptions.

Small, inconsiderable sums of money, occasionally given to a child to spend, or defray expenses in traveling, or to pay for small presents, and the like, should be seemed to have been given, "without a view to a portion or settlement of life," as contemplated by the statute, and are not to be regarded as advancements. Ibid.

But a considerable sum of money given to a son to enable him to start in business, is prima facie an advancement, and every considerable sum of money given to a child to use in business should be deemed an advancement, unless proved to have been given without a view to a portion or settlement in life. Ibid.

A deposit of money by a testator with his sons, who had succeeded to his former business: Held, under the circumstances to have been intended as a loan to them. Estate of Luqueer, 1 Tucker's Sur. Rep. 236.

A testator having money in the hands of his sons, refers to such moneys in his will as "lent or advanced:" Held, that the circumstances did not constitute an advancement," as described in the statute. Ibid.

46

CHAPTER XVIII.

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.

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. The law of what place applies.

1377. Liability of beneficiaries for testator's obligations.

SEC. 1357. Legacies are distinguished and designated, Nature and 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.

designations of legacies.

Specific.

tive.

2. A legacy is demonstrative when the particular fund Demonstraor 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.

Annuities. 3. An annuity is a bequest of certain specific 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 general legacy.

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

General.

5. All other legacies are general legacies.

Holdfast v. Pardoe, 2 Blacket, 975; Chaworth v. Beech, 4 Ves. 555; 2 Redf. on Wills, 462, 463, 475, and cases cited there.

Also, 2 Redf. on Wills, 168; Battison v. Richards, 7 Taunt. 105.

Legacy, on what chargeable.-Where a legacy to an infant, with interest for maintenance till twenty-one was charged on testator's real estate, if the personal estate should be inadequate, and the personal estate was sufficient for all the purposes of the will at the time of testator's death, but was subsequently wasted by the testator's personal representative: Held, by Lord Romilly, that the legacy could not, on the infant attaining twenty-one, be made chargable on the real estate. Richardson v. Morton, Law Rep.; 13 Equity, 27.

See Calkins v. Calkins, 1 Redf. Sur. Rep. 437, cited under section 1317, ante.

Annuity, what.-An annuity is a stated sum per annum, payable annually unless otherwise directed. It becomes payable at the end of a year after the testator's decease, because the will so provides. Booth v. Ammerman, 4 Bradf. 129.

Bequests, and annuities when due.-All bequests are due at the expiration of the year, in the absence of any special provisions to the contrary; and the duty to pay an annuity arises contemporaneously with the efflux of the period the law has allowed for the settlement of the estate. Ibid.

The income or interest of a certain fund is not an annuity, but simply profits to be earned, and although directed to be paid annually, that relates only to the mode of payment and does not change the character of the bequest. In such a case it does not become the duty of the executors to invest the principal sum until the end of a year, and the interest will not become payable until the end of the second year, unless the testator has in his will provided that the investment be made at an earlier time, in which case the will must be followed. Ibid.

Annuities commence to run from the death of the testator. Estate of Fish, 1 Tucker's Sur. Rep. 122; Estate of Develin, 1 Tucker's Sur. Rep. 460. Where part of a bequest was void under the statute: Held, that an annuity charged upon the bequest was chargeable upon that part of it which was good. Estate of Leary, 1 Tucker's Sur. Rep. 233.

Bequest of personal property.-Investment.-Where a will bequeaths to the widow generally all the personal estate for life, with remainder over, the whole must be converted into money and invested by the executor, and the income paid over to the widow. Calkins v. Calkins, 1 Redf. Sur. Rep.

337.

The will read, "I give and bequeath to my beloved wife Nancy, all my real estate, personal property, house, furniture, etc., to have and to hold as hers as long as she shall live; and after her death the property that is re

maining, I request to be divided among my surviving children," naming them: Held, that the bequest was general and not specific, and that the

aumant of the debts should be in

Page 325.

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.

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

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

2. Property not disposed of by the will;

3. Property which is devised or bequeathed to a residuary legatee;

4. Property which is not specifically devised or bequeathed; and

5. 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.

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:

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

2. Property not disposed of by the will;

3. Property which is devised or bequeathed to a residuary legatee;

4. Property which is [not] specifically devised or bequeathed.

how

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