When devises and bequests vest. When cannot be divested. Death of devisee or legatee. Interests in remainder are not affected. Conditional devises and Mees. & W., p. 563. To the contrary.-Ex parte Hornby, 2 Bradf., p. 420. Otherwise, if the words are equally descriptive of several persons (Doe vs. Allen, 12 Ad. & El., p. 451; Fleming vs. Fleming, 8 Jur. [N.S.], p. 1042,) or subjects of ownership (see Douglass vs. Fellows, 1 Kay, pp. 114, 120). 1341. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. NOTE.-Devises-Post vs. Hover, 30 Barb., pp. 312, 319; bequests-Dupre vs. Thompson, 8 Barb., p. 537. 1342. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. аг NOTE.-Williams vs. Jones, 1 Russ., p. 517; Humberston vs. Stanton, 1 Ves. and B., p. 485. 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. NOTE.-Savage vs. Burnham, 17 N. Y., p. 575. 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. NOTE.-Devisee's death (Downing vs. Marshall, 23 N. Y., p. 370; 23 How. Pr., p. 7; Campbell vs. Rawdon, 18 N. Y., p. 421), or that of a legatee of a limited interest, prior to that of testator, does not defeat the interests of persons in remainder who survive him. 1345. A conditional disposition is one which debequests. pends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. Condition precedent, what. 1346. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. NOTE.-See Sec. 1281, ante, and note. condition 1347. Where a testamentary disposition is made Effect of upon a condition precedent, nothing vests until the precedent. condition 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. precedent, 1348. A condition precedent in a will is to be Conditions deemed performed when the testator's intention has when been substantially, though not literally, complied performed. with. deemed subse 1349. A condition subsequent is where an estate Conditions or interest is so given as to vest immediately, subject quent, only to be divested by some subsequent act or event. what. 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. ments, 1351. Advancements or gifts are not to be taken Advanceas ademptions of general legacies, unless such inten- when tion is expressed by the testator in writing. ademp tions. 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. 1362. Abatement. 1363. Specific devises and legacies. Nature and designation SECTION 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. 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, of legacies. according to their nature, as follows: Specific. Demonstrative. Annuities. Residuary. General. 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 after all the bequests of the will are discharged; 5. All other legacies are general legacies. NOTE.-SPECIFIC-Subd. 1.-3 Beav. Rolls, p. 349; Holdfast, D. vs. Pardoe, 2 Blk. Comm., p. 975; Doe, D. vs. Sloggett, 5 Exch., p. 107; Battison vs. Rickards, 7 Taunt., p. 105. Legatee may insist on incumbrances being removed by the executor.-Red. Law of Wills, Part II, p. 280; Knight vs. Davis, 3 Myl. & K., p. 358; Swinb., Part VII, Sec. 20, pl. 18.-See, also, Part II, Red. L. of Wills (ed. 1866,) p. 462, Subd. 9; not subject to contribute for deficiency. am 1358. DEMONSTRATIVE-Subd. 2.-This term is from the civil law, not liable to ademption, and fails by calling in or changing the fund, but is payable out of general assets. Red. L. of Wills, Part II, p. 463, Subd. 10; Chaworth vs. Beech, 4 Ves., p. 555. ANNUITY-Subd. 3.-Is the grant of a sum of money to be paid annually, unless otherwise provided in the will for life, term of years, or in perpetuity, and generally regarded as mere personalty.-Red. L. of Wills, Part II, (ed. 1866), p. 168, Sec. 25, 1-2; Taylor vs. Martindale, 12 Sim., p. 158; Turner vs. Turner, Amb., p. 776; S. C. 1 Br. C. C., p. 316; Earl of Stafford vs. Buckley, 2 Ves. Sen., p. 170; Lady Holderness vs. Ld. Carmarthen, 1 Br. C. C., p. 377; Booth vs. Ammerman, 4 Bradf. Sur. R., p. 129. RESIDUARY-Subd. 4.-A bequest of all personal estate is not residuary.-2 Wms. Exrs., p. 1054; 1 Roper Leg., p. 215; Colkins vs. Colkins, 1 Redf. Sur. Rep., p. 337; Red. L. of Wills, p. 475, (1866 ed.), Part II, but all at a particular place is; so, also, when there is a specification of the residue on almost every other limitation. The text of this section, however, confines or limits it to the residue after all the bequests of the will are discharged. When a person dies intestate, his property, except such as is otherwise disposed of under this Code, and under Chapter V, of Title XI, of Part III, 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. аги NOTE.-See Sec. 1516 and note, Co. Civ. Pro. Cal. Debts and claims valid against testator must all be paid before legacies.-Red. L. of Wills, Part II, (ed. 1866), p. 547; Lomas vs. Wright, 2 Myl. & K., p. 769; 2 Wms. Exrs., p. 914. 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: Same. 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. NOTE.-Part III, Co. Civ. Pro. Cal., Tit. XI, Chap. VII, Art. I-Personal property first resorted to to pay debts. Arts. II and III-Sales of personal property. Id., Chap. X, Arts. II and III-Accounting and settlement of estates, and payment of debts. Chap. XI, id., Arts. I and II-Payment of legacies, and distribution and final settlement. When personal property is insufficient to pay debts, real estate resorted to.-Stuart vs. Allen, 16 Cal., p. 473; argued ably, with elaborate briefs, and thoroughly discussed by the Court through Baldwin, J.; see, also, Haynes vs. Weeks, 20 Cal., p. 288. When the testator dies leaving both personal and real estate, and owing debts secured by mortgage on the realty, and bequeaths all the personal and one half the real estate to one devisee, and the remaining half of the latter to another, without mentioning the debts, the legacies and devises are all general, and the entire property devised must contribute pro rata to the payment of the debts.-Estate of Woodworth, 31 Cal., p. 595; Alba vs. Burnett, 33 Cal., p. 667; see, also, Sec. 1563 (180) and 1564 (2 181) of the Co. Civ. Pro. Cal. When real estate may be sold to pay legacies, see Sec. 1559, Co. Civ. Pro. Cal. Order for payment of legacies and extension of time, see Sec. 1651, Co. Civ. Pro. Cal. Partial payment of legacies, etc., see Secs. 1658 to 1661 inclusive, Co. Civ. Pro. Cal. At common law, where no different order is prescribed by the will, the assets of the decedent will be marshaled, and the debts paid out of them, in the following order: |