SECTION 1343. Death of devisee or legatee. 1344. Interests in remainder are not affected. 1346. Condition precedent, what. 1347. Effect of condition precedent. 1348. Conditions precedent, when deemed performed. 1350. Devisees, &c., take as tenants in common. § 1317. A will is to be construed according to the inten tion of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible. § 1318. In case of uncertainty arising upon the face of a will, as to the application of any of its provisions, the testa tor's intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. § 1319. In interpreting a will, subject to the law of this State, the rules prescribed by the following sections of this chapter are to be observed, unless an intention to the contrary clearly appears. § 1320. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. § 1321. All the parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole; but where several parts are absolutely irreconcilable, the latter must prevail. § 1322. A clear and distinct devise or bequest cannot be affected by any reasons assigned therefor, or by any other words not equally clear and distinct, or by inference or argument from other parts of the will, or by an inaccurate recital of or reference to its contents in another part of the will. § 1323. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will. § 1324. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. § 1325. The words of a will are to receive an interpreta tion which will give to every expression some effect, rather than one which will render any of the expressions inoperative. § 1326. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy. § 1327. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention. § 1328. Technical words are not necessary to give effect to any species of disposition by a will. § 1329. The term "heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. § 1330. Real or personal property embraced in a power to devise passes by a will purporting to devise all the real or personal property of the testator. § 1331. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was entitled to dispose of by will at the time of his death. § 1332. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise at the time of his death, not otherwise effectually devised by his will. [In effect July 1, 1874.] § 1333. A bequest of the residue of the testator's personal property passes all the personal property which he was entitled to bequeath at the time of his death, not otherwise effectually bequeathed by his will. [In effect July 1, 1874.] § 1334. A testamentary disposition to heirs," relations," ," "nearest relations," " representatives," "legal repre sentatives," or "personal representatives," or "family," "issue," "descendants," "nearest" or "next of kin " of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the Title on Succession in this Code. § 1335. The terms mentioned in the last section are used as words of donation, and not of limitation, when the property is given to the person so designated directly, and not as a qualification of an estate given to the ancestor of such per son. § 1336. Words in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is actually postponed, when they must be referred to the time of possession. § 1337. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed. § 1338. When a will directs the conversion of real prop erty into money, such property and all its proceeds must be deemed personal property from the time of the testator's death. § 1339. A child conceived before, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class. § 1340. When, applying a 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 extrinsic evidence; but evidence of the declarations of the testator as to his intentions cannot be received. § 1341. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. § 1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. § 1343. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in section thirteen hundred and ten. [In effect July 1, 1874.] § 1344. 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. § 1345. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. § 1346. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. § 1347. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfilment 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. § 1348. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not literally, complied with. § 1349. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. § 1350. A devise or legacy given to more than one person vests in them as owners in common. § 1351. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. CHAPTER III. GENERAL PROVISIONS. BECTION 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. 1362. Abatement. 1363. Specific devises and legacies. 1364 Heir's conveyance good, unless will is proved within four 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. § 1357. Legacies are distinguished and designated, 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; 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, re sort may be had to the general assets, as in case of a general legacy; 3. An annuity is a bequest of certain specified sums peri odically; if the fund or property out of which they are pay able 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 after all the bequests of the will are discharged; 5. All other legacies are general legacies. |