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.

[C. L. § 2718.

sums per month, gave to the administrator a reasonable discretion to fix the amount at what he deemed sufficient, to be paid out of any part of said estate in his hands. Allen v. Barnes, 5 U. 100; 12 P. 912.

2803. Property chargeable with payment of debts. 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 by law. [C. L. § 2719.

Cal. Civ. C. 1358.

Property subject to

payment of debts, 2 2731,

2825. 2828. Property not subject to payment of debts, 27 2829, 3847.

2804. Id. Order in which resorted to. The property of a testator, except as otherwise provided by law, must be resorted to for the payment of debts and expenses in the following order:

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

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. [C. L. § 2720*.

Cal. Civ. C. 2 1359*.

2805. Contribution among devisees and legatees. When an estate given by will has been sold for the payment of debts or expenses, all the devisees and legatees must contribute according to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the court. when distribution is made, must by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distributive shares, respectively, for the purpose of paying each contribution. [C. L. § 4184.

Cal. C. Civ. P. 1564.

2806. Bequest of debt due from executor. Effect. The discharge or bequest in a will of any debt or demand of the testator against the executor named, or any other person, is not valid against the creditors of the decedent. but is a specific bequest of the debt or demand. It must be included in the inventory, and if necessary, applied in the payment of the debts. If not necessary for that purpose, it must be paid in the same manner and proportion as other specific legacies. [C. L. § 4103.

Cal. C. Civ. P. 1448.

2807. Property available for payment of legacies. Order. The property of a testator, except as otherwise provided by law, 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.

Property which is devised or bequeathed to a residuary legatee. 4. Property which is not specifically devised or bequeathed.

$ 2721*.

Cal. Civ. C. 1360.

[C. L.

2808. Id. Legacies to kindred. Legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator. [C. L. § 2722.

Cal. Civ. C. 1361.

2809. Abatement by classes. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. [C. L. § 2723.

Cal. Civ. C. 1361.

2810. Sale of property bequeathed. 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 court to sell the property devised and bequeathed, in the cases herein provided. [C. L. § 2724.

Cal. Civ. C.1363.

2811. Heir's conveyance good notwithstanding devise, when. 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 instrument containing such devise is duly proved as a will, and recorded in the office of the clerk of the district court having jurisdiction thereof, or unless written notice of such devise is filed with the recorder of the county where the real property is situated, within four years after the devisor's death. [C. L. § 2725.

Cal. Civ. C. 1364*.

Purchasers in good faith, 1975, 2001.

2812. Duty of legatees for life. 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. [C. L. § 2726. Termination of life estate, 3572.

Cal. Civ. C. 1365.

2813. Accrual of interest or income. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. [C. L. § 2727.

Cal. Civ. C. 1366.

2814. Satisfaction of legacy before death. A legacy or gift in contemplation, fear, or peril of death, may be satisfied before death. [C. L. § 2728.

Cal. Civ. C. 2 1367.

2815. Legacies and annuities, when due. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease. [C. L. § 2729.

Cal. Civ. C. 1368.

2816. Interest on legacies.

Testamentary dispositions vest, when, 2 2791. 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. [C. L. § 2730.

Cal. Civ. C. 1369.

2817. Intent governs four preceding sections. The four preceding sections are in all cases to be controlled by a testator's express intention. [C. L. $ 2731.

Cal. Civ. C. 1370.

2818. Person intended made executor, though not named. 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. $ 2732.

Cal. Civ. C. 21371.

[C. L.

An authority to an

[C. L. § 2733. Similar section, 23802.

2819. Executor cannot appoint executor. executor to appoint an executor is void.

Cal. Civ. C. 1372.

2820. Executor must qualify. 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. $2734.

Cal. Civ. C. 1373.

[C. L.

2821. Wills made prior to May 31, 1884, not affected. The provisions of this title do not impair the validity of the execution of any will made prior to the thirty-first day of May, eighteen hundred and eighty-four, nor affect the construction of any such will. [C. L. § 2736.

Cal. Civ. C. 1375*.

2822. What law governs construction of wills. 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.

Mont. Civ. C. 1838.

Validity of foreign wills, 2744. Proof of foreign will, ? 3806.

2823. Person killing another not to inherit from such other. No person who has been finally convicted of feloniously causing the death of another shall take or receive any property or benefit by succession, will, or otherwise, directly or indirectly, by reason of the death of such person; but all property of the deceased and all rights of the defendant upon his death shall vest and be determined the same as if the person convicted was dead.

N. Dak. 3682.

CHAPTER 4.

SUCCESSION.

2824. Defined. Succession is the coming in of another to take the property of one who dies without disposing of it by will.

Cal. Civ. C. 1383.

[C. L. § 2739.

2825. Property passes to heirs. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the court, and to the possession of any administrator appointed by the court for the purpose of administration. [C. L. $2740.

Cal. Civ. C. 1384.

Payment of debts, ?? 2803, 2828.

2826. Wife's interest in husband's real property. One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him; provided, that the wife shall not be entitled to any interest under the provisions of this section in any such estate of which the husband has made a conveyance when the wife, at the time of the conveyance, is not or never has been a resident of the territory or state of Utah. Property distributed under the provisions of this section shall be free from all debts of the decedent, except those secured by mechanics' or laborers' liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created

for the purchase thereof and for taxes levied thereon. The value of such part of the homestead as may be set aside to the widow shall be deducted from the distributive share, provided for her in this section. In cases wherein only the heirs, devisees, and legatees of the decedent are interested, the property secured to the widow by this section may be set off by the court in due process of administration. Iowa, McClain's An. C. (1888) ? 3644*.

Limitation on devise by married man, ? 2731. Section 676 of the Compiled Laws of 1876 gives the widow of an intestate a life interest in the homestead, with remainder over to the children of the deceased. Dooly v. Stringham, 4 U. 107; 7 P. 405.

2827.

Under section 2741, C. L. 1888, the widow is not put to her election, but takes one-third of the real property of the intestate in fee and one-third of the personal property, as well as a dower interest of the estate for life in one-third of all the intestate's realty. Knudsen v. Hannberg, 8 U. 203; 30 P. 749.

When widow to elect between will and distributive share. If the husband shall make any provision by will for the widow, such provision shall be construed to be in lieu of the distributive share secured by the next preceding section, unless it shall appear from the will that the decedent designed the testamentary provision to be additional to such distributive share, in which case the widow shall be presumed to have accepted both such testamentary provision and such distributive share. If, however, it does not appear from the will that its provision for the widow is additional, then the widow shall be conclusively presumed to have renounced such provision, and to have accepted her distributive share, unless within four months after the admission of the will to probate, or within such additional time before distribution as the court may allow, she shall, by written instrument filed with the clerk of the court, accept the testamentary provision, which acceptance shall be construed to be a renunciation of her distributive share. In the event that the wife shall be insane or incompetent, or absent from the state, an election shall be made for her by a general guardian, if she have one, or by a special guardian for the purpose, appointed by the court.

2828.

Succession. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this title, or in the probate code, subject to the payment of his debts, in the following manner:

1. If the decedent leave a surviving husband or wife, and only one child, or the issue of one child, in equal shares to the surviving husband or wife, and child or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, or one child living, and the issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the issue of any deceased child, by right of representation; but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all of the descendants are in the same degree of kindred to the decedent, they share equally, otherwise they take according to the right of representation; provided, that the share in the legal and equitable estates in real property of which an intestate husband died possessed, secured by this section to his widow, shall not be additional to the interest in such estates provided for her in section twenty-eight hundred and twenty-six.

2. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue, and if such issue consists of more than one child living, or one child living, and the issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation.

3. If the decedent leave no issue all of the estate, real and personal, of which the decedent died seized or possessed, if not over five thousand dollars in value, exclusive of debts and expenses, goes to the surviving husband or wife; and if over that value, five thousand dollars in value thereof goes to the surviving husband or wife, and the excess goes one-half to the surviving husband or wife, and the other

half to the decedent's father and mother, in equal shares, and if either be dead, the whole of said half goes to the other. If there be no father nor mother, then one-half of such excess goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother in equal shares, or if either be dead, then to the other.

4. If there be neither issue, husband, wife, father, nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation.

5. If the decedent leave a surviving husband or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife.

6. If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestors must be preferred to those claiming through an ancestor more remote.

7. If the decedent leave several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation.

8. If, at the death of such child who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation.

9. If the decedent leave no husband, wife, nor kindred, and there be no heirs to take the estate or any portion thereof,, the same shall escheat to the state for the benefit of the school fund. [C. L. § 2741*.

Cal. Civ. C. 1386*.

Marriage contract, 2754. Person feloniously

causing death of another not to inherit from deceased, 2823.

2829. Homestead exemption. Debts. A homestead consisting of lands and appurtenances not exceeding in value the sum of two thousand dollars, and two hundred and fifty dollars additional for each minor child, together with all the personal property exempt from execution, shall be wholly exempt from the payment of the debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, or of the minor children in case there be no surviving husband or wife, to be set apart on petition and notice, at any time after the return of the inventory; provided, that the homestead selected shall be subject to any incumbrances given for the purchase price or by the consent of both husband and wife, and to mechanics' liens. This section shall not be construed to prevent the disposition by will of the homestead and exempt personal property. [C. L. SS 4114*, 4117*; '96, p. 215*.

Cal. C. Civ. P. 22 1465, 1468*.

Homestead, 2 1147, 3847.

2830. Id. Ownership. Partition. The homestead and exempt personal property shall belong to the surviving husband or wife and minor children; or, if there be no minor children, to the surviving husband or wife; or, if there be no surviving husband or wife, to the minor children. If the surviving husband or wife again marries, or when all of said minor children arrive at the age of majority, the homestead may be partitioned, one-half to the surviving husband or wife and the other half to the said children. The interest of the surviving husband or wife or of any child in the homestead may be disposed of by will, or shall pass by succession in the proportions aforesaid as other real property, but