and there is no inclosure around the mill, and no portion of it has any special relation to the business carried on at the mill, the entire tract of land passes by the will to the devisee upon the death of the testator. Bruck v. Tucker, 32 Cal. 425. If the whole tract of land around the mill which belongs to the testator in such case is less than half a league, it will be assumed that he intended to give the whole tract. Ibid. See, also, Bruck v. Tucker, October Term, 1871, cited under section, 1317, post. The bequest was to Susan, the testator's wife, all the residue of his property, after payment of his debts, "for her natural life," etc. The entire estate was community property: Held, that the devise applied only to that moiety within the testamentary power of testator, and the wife would take one moiety in fee and a life estate in the other moiety: Held, further, that the court cannot, by decree, make her elect to take the entire estate for life with remainder over, etc., or only one moiety in fee. The principle, that one who takes under a will cannot afterwards dispute its validity, does not apply, for decedent had no authority to dispose of but one half the prope:ty, and the wife withdrawing her share from the liabilities of law, etc., is not disputing the will. Estate of Silvey, Cal. Sup. Court, October Term, 1871. A will by which interests in real estate were devised to certain infants, provided that the devisees might each "take out" one half of his share when he should come of age, and the other half not until all the other children should come of age, and it was objected to the validity of a sale made by the guardian of the devisees, under order of the probate court, that the above provision of the will so controlled the disposition of the property that it was not the subject of sale by the guardian: Held, that whatever effect this provision might have in controlling the use of the property, the title to it, the estate of the devisees vested in them upon the death of the testator, and this estate was the subject of sale under the provisions of the statute, and the effect of its sale was to transfer whatever estate the wards had to the purchaser. Fitch v. Miller, 20 Cal. 352. qu the the. Page 306. 1312. Any estate, right, or interest in lands acquired by the testator after the making of his will, passes thereby and in like manner as if title thereto was vested in him at the time of making the will, unless the contrary manifestly appears by the will to have been the intention of the testator. Every will made in express terms devising, or in any other terms denoting the intent of the testator to devise all the real estate of such testator, passes all the real estate which su testator was entitled to devise at the time of his decease. 4717 which the testator may die seized, made Pusuance of the provisions of section twenty-two of the act of the State of California concerning wills, is a general not a specific, devise. Ibid. CHAPTER XVII. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PRO- SECTION 1317. Testator's intention to be carried out. 1318. Intention to be ascertained from the will. 1319. Rules of interpretation. 1320. Several instruments are to be taken together. 1322. In what case devise not affected. 1323. When ambiguous or doubtful. 1324. Words taken in ordinary sense. 1325. Words to receive an operative construction. Opposite Section 1312, Page 307. 1313. No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society, or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made, at least thirty days prior to such death such devise or legacy, and each of them, shall be valid; provided, that no such devises or bequests shall collectively exceed one third of the estate of the testator leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one third of such estate; and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devise, next of kin, or heirs, according to law. [Approved March 18th, 1874. Immediate effect.] End of Section 1317, Page 307. Express devise sufficient accuracy. Bruck v. Tucker, 42 Cal. 349. Devise of common property. Estate of Silvey, 42 Cal. 211. tion to rried Intention to be ascertain will. Illegitimate child, provision for.-The testator charged the bequest of his estate with the "support and education" of a minor, illegitimate child, without naming any amount therefor: Held, that in determining what should be the manner and style of education and support, the conclusion must be arrived at by reference to the will, and on a fair and just interpretation of its provisions, considering all the circumstances which surrounded the testator, and the motives which probably actuated him. Williams v. McDougall, 39 Cal. 80. Intention.-Construction. If a word in a will is repugnant to the clear intention manifested in other parts of the instrument, it may be regarded as surplusage or restricted in its application. Estate of Wood, 36 Cal. 75. When the testator in his will, directs his executor, within one year after his decease, to sell his real estate, the proceeds to be disposed upon certain trusts, the power to sell is not limited to one year, but may be exercised after that time, unless there are express words in the will showing the intention of the testator thus to limit the exercise of the power. Kidwell v. Brummagim, 32 Cal. 436. A devise in the words: "To my daughter Lolita, the flour-mill with the land pertaining thereto - a half league, more or less," must be construed with the intention of the testator in view, and its construction is a matter of law, and not to be submitted to a jury. Bruck v. Tucker, October Term 1871; Pac. Law Rep. vol. III, p. 5. Where a will bequeaths to the widow generally, all the personal estate for life, with remainder over, the whole must be converted into money and invested by the executor, and the income paid over to the widow. Calkins v. Calkins, 1 Redf. Sur. Rep. 337. The will read: "I give and bequeath to my beloved wife, Nancy, all my real estate, personal property, house, furniture, etc., to have and to hold as hers as long as she shall live; and after her death, the property that is remaining, I request to be divided among my children,” naming them: Held, that the bequest was general and not specific, and that the money in the hands of the executor, after payment of the debts, should be invested by him in permanent securities, and the income paid over to the widow. Ibid. The testator directed that after the payment of his debts and a certain annuity to U., all his real and personal property should go to his widow for life. One of the debts against the estate was in the nature of a life annuity to N. H.: Held, that both these annuities should be paid out of the principal, and not out of the income, of the estate. That after the payment of the annuities, debts of the estate, expenses of administration, and funeral expenses, the balance should be invested in permanent securities, and the net income, and rents and profits, paid to the widow. Haven v. Haven, 1 Redf. Sur. Rep. 374. SEC. 1318. In case of uncertainty arising upon the face ed from the of a will, as to the application of any of its provisions, the testator'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. 1 Redf. on Wills, 230, and cases cited there. And see Bullock v. Evans, 9 H. of L. Cas. 24, and Madison v. Chapman, 5 Jur. (N. S.) 277. Legacy.-Bequest.-The testator, after commencing his will with the words "as far as my worldly goods and chattels I bequeath them as followeth," gave several pecuniary legacies, and amongst the rest, to his daughter Susannah, a legacy of £3,000. He also bequeathed to his daughter Susannah, "all things in the house remaining and all moneys both in the house and out of it," and made no express residuary bequest. He appointed an executor. At the time of his death testator had moneys in his house, at his bankers, and at a savings bank. He bad also due to him arrears of a superannuation allowance, and a sum for funeral expenses from a friendly society, as to all of which there was no question. He had besides some shares in a building society and a sum of consols standing in his own Vice Chancellor Bacon held that the shares and stock did not pass under the bequest of "all moneys both in the house and out of it." Collins v. Collins, Law. Rep., 12 Eq. 291. name. Residuary clause.—Construction.—Ambiguity.—The residuary clause of a will was as follows: "Item, I give and bequeath the residue of my estate after the foregoing bequests have been fully paid to the orthodox Protestant clergyman of Delphi, and their successors, to be expended in the education of colored children, both male and female, in such way and manner as they may deem best of which a majority of them shall determine; my object in this bequest being to promote the moral and religious improvement and well-being of the colored race." Gaines v. Harmon, 35 Ind. Rep.; Pac. Law Rep., vol. V, p. 223. No organized or corporate body known as the orthodox Protestant clergyman of Delphi existed at the time of the execution of the will, or afterwards: Held, in a suit of the heirs at law of the testator against his executors, that said residuary clause was void for vagueness and uncertainty, and incapable of judicial enforcement by a court of chancery possessing the ordinary powers of a court of equity, and, therefore, could not be sustained by the courts of this State. Ibid. The testator, by his will, directed that in case of his widow's death, without issue, a certain sum should be paid over to such five persons, residents of Addison county, Vermont, as should be named and appointed by the judges of the supreme court of Vermont, to be trustees, "to found, establish and manage an institution for the education of females, to be located in the town of Middlebury, Vermont." After certain specific legacies, he bequeathed the residue of his estate "unto five persons, who shall be named as trustees by the supreme court of Vermont," for the same purpose. No time was given within which such appointment should be made, and no other mention of the institution, its object or purpose, was made. The residue consisted of personal property situated in this State, which was the testator's domicile at the time of his death: Held, that the bequests were invalid. Bascom v. Nichols, 1 Redf. Sur. Rep. 340. tion. SEC. 1319. In interpreting a will, subject to the law of Rules of inthis State, the rules prescribed by the following sections of terpretathis chapter are to be observed, unless an intention to the contrary clearly appears. See 1 Redf. on Wills, 424, et seq., and notes. If the testator devises his "flour-mill with the land pertaining thereto, a half league, more or less," and he owns a large tract of land around the Several instruments are to be taken to gether. mill, and there is no inclosure around the mill, and no portion of it has any special relation to the business carried on at the mill, the entire tract of land passes by the will to the devisee, upon the death of the testator. Bruck v. Tucker, 32 Cal. 425. If the whole tract of land around the mill which belongs to the testator in such case is less than half a league, it will be assumed that he intended to give the whole tract. Ibid. If the testator devises his "flour-mill with the land pertaining thereto, a half league, more or less," and several witnesses testify, some that he applied the term "mill tract" to all the land at one time, and others that at a different time he applied the same name to only a part of the land, it is not a case of conflict of testimony. Such testimony only shows that the testator applied the name "mill tract," sometimes to a part of the land, and sometimes to all, and the devisee, to recover the land, is not obliged to prove the boundaries of the land intended to be devised. Ibid. If the testator in his lifetime conveys or contracts to convey a part of a tract of land devised by him, the will, upon his death, operates only upon so much of the land as legally and equitably belonged to him at his death. Ibid. An instrument purporting to be a will executed by P. after reciting that he had already proportioned out to his sons their lands, contains this clause: “I declare that these lands comprehend all my property of the Rancho de San Antonia, the title of whose concession and possession is in the hands of my son Ygnacio, and which lands I have already divided amongst my sons as a donation inter vivos, to their entire satisfaction, and which donation, by these presents, I hereby ratify:" Held, that the heirs at law of P., and all persons claiming under him, are estopped by these recitals from denying that a title had passed to the sons in conformity therewith. Adams v. Lansing, 17 Cal. 629. Held, further, that these recitals give title to the sons by way of ratification of the previous gift, and that the intention of the instrument was to vest the title immediately in the sons, and not to make a testamentary disposition of the lands. Ibid. Held, further, that it is immaterial whether the instrument is operative for testamentary purposes or not; that being executed with all the formalities required for the execution of a deed, it was admissible in evidence in behalf of defendant, who claimed title under it, without regard to its testamentary character. Ibid. The same instrument may operate both as a conveyance and as a will or devise in regard to different pieces of property. Ibid. SEC. 1320. Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument. The codicil to a will operates as a republication of the will, and the two are to be regarded as forming but one instrument, speaking from the date of the codicil. Payne v. Payne, 18 Cal. 291. Where a will gives the testator's property to his wife, without naming his children, and subsequently a codicil is made referring to the will and mentioning the children: Held, that the codicil and the will must be read to |