1. Personal estate not specifically bequeathed, or ex- how with debts. 1360. In the application of the personal property Legacies, of a decedent to the payment of debts, legacies must charged 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. NOTE.-See Secs. 1357 and 1359, ante, and notes. Specific legacies paid next after debts.-Red. L. of W., p. 549, (ed. 1866); Clifton vs. Burt, 1 P. Wms., p. 678. Unless general were made a charge on the special. Sayer vs. Sayer, Prec. Ch., p. 392; White vs. Green, 1 Jud. Ch., p. 45. From this it is seen the rule for the abatement of legacies is the converse of their order as charges upon the estate, as laid down in Red. L. of Wills, p. 549, et seq., Subds. 7, 8, 9, 10, 11, 12. But demonstrative legacies are to be abated only when the demonstrative fund is exhausted, and the remainder becomes a general legacy.-Red. L. of Wills, p. 469, Subd. 18; Mullins vs. Smith, 1 Drew & Sm., p. 204; White vs. Beattie, 1 Dev. Eq., p. 320. See, also, note to the preceding section. 1361. Legacies to husband, widow, or kindred of Same any class are chargeable only after legacies to persons not related to the testator. NOTE. The rule of the text seems to be so well founded in natural justice, and to accord so nearly with that which is presumed to be the natural inclination of the testator, that approbation is accorded to it, not Abatement Specific devises and logacies. Heir's conveyance good, unless will is proved within four years. withstanding the converse is laid down in Red. L. of Wills (ed. 1866), Part II, p. 552, Subd. 12, where, too, it is conceded that in all probability other legacies would not have been made if the testator could have supposed that the legacies to those naturally dependent on him would have from any cause failed. When a widow receives in lieu of her dower, the legacy is preferred as a consideration; and so may a legacy be exempt from abatement, made to a wife or child destitute of other provision. This was so held in Duncan vs. Alt, 3 Penn. R., p. 382, Gibson, C. J. 1362. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. NOTE.-A manifestly proper rule. 1363. 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 Judge of the Probate Court to sell the property devised and bequeathed, in the cases herein provided. NOTE. The executor should collect things specifically bequeathed, as well as other portions of the estate, and dispose of them by delivery to the legatee, unless absolutely required for the payment of debts.-Clarke vs. Ormonde, Jacob., p. 108. In what language will must be couched to be construed as a deed.-Norris vs. Hensley, 27 Cal., p. 439; Bruck vs. Tucker, 32 Cal., p. 425; Estate of Woodworth, 31 id., p. 595. 1364. The rights of a purchaser or incumbrancer 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 instru ment 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. NOTE.-See Secs. 1314 ( 20, 23) and 1318 (? 25) of the Code of Civil Procedure, California. Recording the written notice of devise is intended to obviate any delays in recording the will occasioned by contesting its probate, as, in the absence of any restriction in the will, the legatee would be authorized to take in many cases of protracted contests long prior to admission of the will to probate; one year being ordinarily allowed in which to ascertain indebtedness and pay legacies, in accordance with amount of assets.-Red. L. of Wills (ed. 1866), Part II, p. 564, Sec. 59. of legatees. 1365. Where specific legacies are for life only, the Possession 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. interest. 1366. In case of a bequest of the interest or Bequest o income of a certain sum or fund, the income accrues from the testator's death. NOTE.-The question of vested estates, and the time when taken, together with the interest, accumulation, or income thereon, discussed in pp. 613, 614, Red. L. of Wills, Part II (ed. 1866); Sir John Leach, M. R., Vawdry vs. Geddes, 1 Russ. and My., p. 203; 1 Jarman, p. 802 (ed. 1861), and cases there cited. Income allowed during the time the investment is deferred.Red. L. of Wills, Part II, p. 837 Sec. 72 (ed. 1866). The text refers to a sum certain, and nowise contingent or conditional, except that of subjection to payment of debts.-Sir John Leach, Chancellor, in Stott vs. Hollingsworth, 3 Wadd.. p. 161; Taylor vs. Hibbert, 1 Jac. and W., p. 308; Griffith vs. Morrison, id., in Note 311, it was held that at the end of the year the ascertained residue was the capital, to the interest of which the tenant for life of the residue shall be entitled. It is not unreasonable that the bequest carries such income as the residue raises. Satisfaction. Legacies, when due. Interest. Construction of 1367. A legacy, or a gift in contemplation, fear, or peril of death, may be satisfied. NOTE.-See "Nuncupative Will," Sec. 1288, ante, Subd. 3. Actual contemplation, fear, or peril of death, Sec. 1149, ante. See, also, Article III, Chapter II, Title IV, Part IV, Division II, ante, and the notes to Secs. 1140 to 1153, inclusive. 1368. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease. NOTE.-See conclusion of note to Sec. 1366, ante. 1369. 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. NOTE.-See Sec. 1366, ante, and note. 1370. The four preceding sections are in all cases these rules. to be controlled by a testator's express intention. Executor according to the tenor Power to appoint is invalid. NOTE. This is on the general principle set forth in Sec. 1317, ante, and the note thereto, that a will must be construed "according to the intention of the testator." 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. NOTE. On the general principle which requires intention of the testator to be given effect. 1372. An authority to an executor to appoint an executor is void. NOTE.-See Sec. 1353, (245) Co. Civ. Pro. Cal. 1373. No person has any power, as an executor, until he qualifies, except that, before letters have been not to act issued, he may pay funeral charges and take necessary Executor measures for the preservation of the estate. NOTE.-Article VI, Ch. III, Title XI, Part III, till qualified. as to revo 1374. The provisions of this Title in relation to Provisions the revocation of wills apply to all wills made by any cations. testator living at the expiration of one year from the time it takes effect. and tion of 1375. The provisions of this Title do not impair Execution the validity of the execution of any will made before construcit takes effect, or affect the construction of any such prior wit will. am 1376. Except as otherwise provided, the validity and interpretation of wills are 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. NOTE. Subdivision 22 of Sec. 14, ante, declares that the term " 'will," as used in this Code, includes codicils. Our Stats., 1850, p. 177, Sec. 24, also makes the same declaration. 1377. 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. NOTE. The three Chapters comprising the Title on not affected The law of applies. what place Liability of aries for obligations. benefici testator's |