Sec. 696. Class only affected.

Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will.14

Sec. 697. Representative may sell.

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 county court to sell the property devised or bequeathed, in the cases herein provided.15

Sec. 698. Proved devise impairs deed by heir.

The rights of a purchaser or incumbrances 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 county court having jurisdiction thereof, or unless written notice of such devise is filed with the county judge of the county where real property is situated, within four years after the devisor's death.16

Sec. 699. Succession to limited devises.

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."

14 Snyder, 8,967; Wilson, 6,877; California, 1,362 (Kerr), identical; Estate of Neistrath, 66 Cal. 330, 5 Pac. 507.

15 Snyder, 8.968; Wilson, 6,878; California, 1,363 (Kerr), similar. 16 Snyder, 8,969; Wilson, 6,879; California, 1,364 (Kerr), similar. 17 Snyder, 8,970; Wilson, 6,880.

Sec. 700. Income after death.

In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death.18

Sec. 701. Legacy, etc., may be satisfied before death.

A legacy, or a gift in contemplation, fear or peril of death, may be satisfied before death.19

Sec. 702. Legacies due in one year.

Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease.20

Sec. 703. Interest on legacies.

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.21

Sec. 704. Intention controls.

The four preceding sections are in all cases to be controlled by a testator's express intention.22

Sec. 705. Unnamed executor.

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.23

18 Snyder, 8,971; Wilson, 6,881; California, 1,366 (Kerr), identical; Estate of Brown, 143 Cal. 450, 77 Pac. 160.

19 Snyder, 8,972; Wilson, 6,882. 20 Snyder, 8,973; Wilson, 6,883. 21 Snyder, 8,974; Wilson, 6,881; California, 1,369 (Kerr), identical;

Estate of Balke, 137 Cal. 429, 70 Pac. 303; Estate of James, 65 Cal. 25, 2 Pac. 494.

22 Snyder, 8,975; Wilson, 6,885. 23 Snyder, 8,976; Wilson, 6,886; California, 1,371 (Kerr), identical; Morffew v. San Francisco Co., 107 Cal. 587, 40 Pac. 810.

Sec. 706. Authority void, when.

An authority to an executor to appoint an executor is void. 24

Sec. 707. Power of executor begins, when.

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.25

Sec. 708. Limitation of power.

No executor of an executor, as such, has any power over the estate of the first testator.26

Sec. 709. Will includes codicil.

The term "will," as used in this chapter, includes all codicils as well as wills.27

Sec. 710. Law of place governs, when.

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.28

Sec. 711. Liability of devisees and legatees.

Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the code of civil procedure, or the statutes in such cases made and provided.20

24 Snyder, 8,977; Wilson, 6,887. 25 Snyder, 8,978; Wilson, 6,888; California, 1,373 (Kerr), identical; Bowden v. Pierce, 73 Cal. 459, 14 Pac. 302; Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656; Larcp. v. Casaneuava, 30 Cal. 560.

26 Snyder, 8,979; Wilson, 6,889. 27 Snyder, 8,980; Wilson, 6,890. 28 Snyder, 8,981; Wilson, 6.891. 29 Snyder, 8,982; Wilson, 6,892.

Sec. 712. Will may be recorded with like effect as a deed. Any will, devising real estate or any interest therein, together with a copy of the probate thereof, duly certified by the county judge, may be filed and recorded in the office of the register of deeds, with like effect as a deed duly executed and acknowledged.30

Sec. 712a. Manner in which will may be made by full blood Indian of the five civilized tribes.

Every person of lawful age and of sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein: Provided, That no will of a full blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner.31

This law has since been amended so as to permit the will to be also acknowledged and approved by a judge of any county court in the State of Oklahoma.32

If any member of the five civilized tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allotee shall remain inalienable, unless restrictions against alienation are removed therefrom by the secretary of the interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one; but if no such issue survive, then such allotee, if an adult, may dispose of his homestead by will free from all restrictions; if this be not done, or in the event that the issue herein before provided for die before April twenty-sixth,

30 Snyder, 1,215; Wilson, 908.

31 Act April 26, 1906, 34 Stat. L.

32 Act of May 27, 1908, 35 Stat. L. 312.

nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.33

Chapters forty-nine and one hundred and fifty-five of the Mansfield's Digest, entitled "Descents and Distribution" and "Wills and Testaments," respectively, as modified by acts of Congress, were in force in the Creek nation on the thirteenth day of November, nineteen hundred and five.

34

There being no children born to a noncitizen Creek allotee after the twenty-fifth day of May, nineteen hundred and one, she was entitled to dispose of her homestead by will, and such devise was subject to the imitations contained in the statute which reads:

When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person so far as regards such child shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections.

Where such allotee executes a will for such homestead, naming therein her husband as sole devisee, and dies leaving surviving her an only child by a former husband, born prior to the twenty-fifth day of May nineteen hundred and one, such child is the sole heir of such allotee, and is entitled to the whole of her estate as if she had died intestate.35

83 Act of May 27, 1908, 35

Stat. L. 312.

34 Act of May 2, 1890, Chap. 182, 26 Stat. L. 81; Act of June 30, 1902, Chap. 1,323, 32 Stat. L. 500.

35 In re Brown's Estate, 22 Okla. 216, 97 Pac. 216.