Same. Abatement. 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. (a) See the preceding two sections and authorities cited there. T. N. Farquhar, the testator, and one Leech were partners, entitled to equal shares. Part of the assets consisted of leasehold premises, vested in them as joint tenants, in which the business was carried on. Farquhar, by his will, bequeathed to Leech "all my share of the leasehold premises in which my business is carried on." After Farquhar's death, the assets of the partnership proved insufficient to pay the partnership debts, though Leech and the estate of Farquhar were amply solvent. Leech bought the share of Farquhar in the leasehold premises, without prejudice to his rights under the bequest, and a certificate having been made in a suit for the administration of Farquhar's estate, showing that it was solvent, Leech presented a petition to have it declared that the effect of the bequest was to give him a moiety of the leasehold, exonerated, out of Farquhar's estate, from the partnership debts, and for the return of the purchase money which he had paid: Held (reversing the decision of Stuart, V. C.), that the bequest only gave such interest in the leasehold as Farquhar had; namely, a right to a moiety, subject to payment of the partnership debts, and that, as the partnership debts exhausted the assets, the bequest failed. Farquhar v. Hadden, Law Rep. 7 Ch. 1. SEC. 1361. Legacies to husband, widow or kindred of any class, are chargeable only after legacies to persons not related to the testator. See Duncan v. Alt, 3 Penn. 382. SEC. 1362. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. The will directed the whole estate to be converted into money, and, among other provisions, out of the fund, directed a certain sum to be invested, the interest of which was to be paid to the wife, but without expressing it to be in lieu of dower; and another sum to be invested, and the interest paid to (a) NOTE.-(From Civil Code.)-SEC. 1115. Lineal and collateral warrantees, with all their incidents, are abolished; but the heirs and devisees of every person who has made any covenant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the land descended or devised to them, in the cases and in the manner prescribed by law. SEC. 291. When real property, subject to a mortgage, passes by succession or will, the successor or devisee must satisfy the mortgage out of his own property, without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor, that the mortgage shall be otherwise paid. N. Y. C. C., § 1625. his adopted daughter: Held, that whether these provisions are legacies or annuities, they are general, and are subject to abatement with all the other legacies of the will. In re Williams, 1 Redt. Sur. Rep. 208. vises and SEC. 1363. In a specific devise or legacy, the title passes Specific deby the will; but possession can only be obtained from the legacies. 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. By the devise to G. C. of a house and land on the line of an unopened avenue, G. C. became entitled to one half the avenue, and to the award given by the supreme court for damages in opening the avenue. Estate of Chesterman, 1 Tucker's Sur. Rep. 53. A devise declared void, where limited upon three minorities. In failing, it carries with it all subsequent and pending limitations. B. died, leaving a will containing this unlawful limitation. The devise failing, he is declared to have died intestate; and his widow took only her dower in his real estate, and her third part of his personalty. Estate of Thomas, 1 Tucker's Sur. Rep. 367. Where a legacy of $12,000 was given to nephews and neices, viz: "the five children of C. to be equally divided, share and share alike,” and one died in testator's lifetime, leaving a husband and child surviving: Held, that the children took individually, and not as a class, and that the surviving four took each a fifth, and the remaining fifth fell into the residuum. Estate of Chapeau, 1 Tucker's Sur. Rep. 410. The same deceased legatee being also a residuary legatee, and the residuum being bequeathed to several in common: Held, that her share of the residuum passed to the next of kin of the testatrix. Ibid. See Norris v. Hensley, 27 Cal. 439, cited under section 1334, on page 314, ante; In re Woodworth, 31 Cal. 595, cited on page 121, ante; and Bruck v. Tucker, 32 Cal. 425, cited in preceding chapter. veyance will is years. SEC. 1364. The rights of a purchaser or encumbrancer of Heir's conreal property, in good faith, and for value, derived from good, unless any person claiming the same by succession, are not im- proved paired by any devise made by the decedent from whom within four 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 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. N. Y. C. C., § 621. See sections 1314, on page 21, and 1318, on page 26, ante, and cases cited there; 2 Redf. on Wills (1866), 564. SEC. 1365. Where specific legacies are for life only, the first legatee must sign and deliver to the second legatee, or, Possession of legatee. Bequest of interest. if there is none, to the personal representative, an inventory SEC. 1366. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death. Satisfac Legacie when di Interest. Construc tion of Page 328. 1367. A legacy, or a gift in contemplation, fear or peril of death, may be satisfied before death. 1376. The validity and interpretration of wills, wherever made, are governed, when relating to property within this State, by the law of this State. SEC. 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. See section 1366, in this chapter, ante, and authorities referred to there. SEC. 1370. The four preceding sections are in all cases these rules. to be controlled by a testator's express intention. Executor according Compare section 1317, on page 307, ante, and cases cited there. SEC. 1371. Where it appears, by the terms of a will, to the tenor. 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. Power to appoint is invalid. SEC. 1372. An authority to an executor to appoint an executor is void. See section 1353 of Code of Civil Procedure on page 36, ante, and cases cited there. Where a testator nominated and appointed P. K. and J. T. as executors, and authorized the survivor, if one should die, to appoint another executor by his deed, and the survivor appointed E. W. by his deed: Held, that the surrogate had no power to issue letters testamentary to E. W., as he was not named in the will, and the executorship cannot be delegated under the statutes of New York. Estate of Bronson, 1 Tucker's Sur. Rep. 464. not to act SEC. 1373. No person has any power, as an executor, Executor until he qualifies, except that, before letters have been till quali issued, he may pay funeral charges and take necessary measures for the preservation of the estate. See page 52, seq., ante. fied. as to revoca SEC. 1374. The provisions of this title in relation to the Provisions revocation of wills, apply to all wills made by any testator tions. living at the expiration of one year from the time it takes effect. and con SEC. 1375. The provisions of this title do not impair the Execution validity of the execution of any will made before it takes struction of effect, or affect the construction of any such will. prior wills not affected. what place SEC. 1377. Except as otherwise provided, the validity The law of and interpretation of wills are governed, when relating to applies. real property within this State, by the law of this State; when relating to personal property, by the law of the testator's domicile. benefici SEC. 1378. Those to whom property is given by will, are Liability of liable for the obligations of the testator in the cases and to aries for the extent prescribed by the code of civil procedure. NOTE.-The three chapters comprising the Title on Wills embraces all the laws of our State relating to the subject not contained in Tit. XI of the Code of Civil Procedure; as also many of the provisions of the Civil Code of New York on the corresponding subject from section 614 to section 636, inclusive. testator's obligations. CHAPTER XIX. [From Civil Code.] SUCCESSION. SECTION 1383. Succession defined. 1384. Who first succeeds to possession of estates not devised, and for what purpose. 1385. Personal representatives. 1386. Succession to and distribution of property. 1387. Illegitimate children to inherit in certain events. 1388. The mother is successor to illegitimate child. 1389. Degrees of kindred, how computed. 1399. Same. 1391. Same. 1392. Same. 1393. Same. Succession defined. 1394. Relatives of the half blood. 1395. Advancements constitute part of distributive share. 1396. Advancements, when too much, or not enough. 1397. What are advancements. 1398. Value of advancements, how determined. 1399. When heir advanced to dies before decedent. 1400. Inheritance of husband and wife from each other. 1401. Distribution of the common property in case of death of the wife. 1402. Distribution of common property on death of the husband. 1403. Inheritance by representation. 1404. Aliens may inherit, when and how. 1405. Succession not claimed, attorney-general to cause to be sold, and proceeds deposited. 1406. When the property and estate escheat to the State. 1407. Property escheated subject to charges as other property. SEC. 1383. Succession is the coming in of another to take the property of one who dies without disposing of it by will. (a) (a)NOTE.-(From Report of the California Code Commissioners.)-For adopting the term "Succession," and discarding the more familar expression, "Descents and Distributions," used so long, an apology, if no paramount reason exists, is due from us. We have not, for the mere love of change, done anything; for it is better to adhere to everything tried and |