be resorted to to aid in its construction, and in ascertaining the intention of the testator. Smith v. Bell, 6 Peter's R. 68. 11 Mass. R. 528. 8 Mass. R. 3. And see 1 Jarman on Wills, 362, and Wigram on Extrinsic Evidence, pp. 7 and 8. born child-out of what part of estate to be paid. § 425. [Sec. 18.] When any share of the estate of a testa-, Share of aftertor shall be assigned to a child born after the making of a will, or to a child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same shall be first taken from the estate not disposed of by the will, if any; if that shall not be sufficient, so much as shall be necessary shall be taken from the devisees or legatees, in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision, may be exempted from such apportionment, and a different apportionment, consistent with the intention of the testator, may be adopted. Advancement testator. § 426. [Sec. 19.] If such child or children, or their descendants, so unprovided for, shall have had an equal pro- during lifetime of portion of the testator's estate bestowed on them in the testator's lifetime, by way of advancement, they shall take nothing in virtue of the provisions of the three preceding sections. $427. [Sec. 20.] When any estate shall be devised to any child, or other relation of the testator, and the devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate so given by the will, in the same manner as the devisee would have done, if he would have survived the testator. § 428. [Sec. 21.] Every devise of land in any will shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that he intended to convey a less estate. After-acquired by will. § 429. [Sec. 22.] Any estate, right, or interest in lands acquired by the testator, after the making of his or her will, property to pass shall pass thereby, and in like manner as if it passed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator. Will made out of state subject to this act. Will includes codicil. § 430. [Sec. 23.] No will made in any other of the United States, or in any foreign country or state, shall be deemed valid as a will in this state, unless executed according to the provisions of this act. § 431. [Sec. 24.] The term "will," as used in this act, shall be so construed as to include all codicils as well as wills. Cases bearing upon the subject of the preceding Chapter. The fact that a will was begun on one day, and finished several days afterwards, is, it seems, no ground for invalidating the will, under the Mexican law. Castro v. Castro, 6 Cal. 158. The strictness of the rules of the civil law requiring five, or least three, witnesses to a will, was relaxed expressly in favor of remote districts. And by the customs of California, under the Mexican rule, which have the force of law, two witnesses were sufficient to a will. Ibid. A will is regarded by the courts of England and the United States as a conveyance, and takes effect as a deed, on proof of its execution, unless there be some express statute requiring it to be probated. Ib. Opinion, at p. 161. The will of a testator dying before the organization of the State Government, did not require to be probated, under the then existing laws. Grimes' Estate v. Norris, 6 Cal. 621. Our statute of wills not only fails to require the probate of wills executed before its passage, but it must from its terms be concluded that the Legislature actually intended to exclude such wills from the operation of the statute altogether, leaving their validity to depend upon the laws under which they were made, and not disturbing rights which had grown up under the former system. Ibid. A will only becomes executed npon the death of the testator, and therefore this construction does not affect wills made before the passage of the statute, where the testator did not die till after its passage. Ibid. Property in this State, acquired by the husband after marriage, but before the passage of the Act of April 17, 1850, is common property under the Mexican law, as that acquired subsequently is by the statute, and cannot be disposed of by will. Buchanan's Estate, 8 Cal. R. 507. A posthumous child. for whom no provision is made in the will of the father, A revocatory clause in a will, of all former wills, is not always imperative. In determining the construction of a will, the testator is presumed to have Wills may be conditional, that is dependent for their testamentary operation upon a specified contingency. But the condition must appear upon the face of the will, and go to the root of the entire instrument, in order to affect the question of probate. Ex-parte Lindsay, 2 Bradf. R. 204. t 2 CHAPTER XIX. DISCONNECTED STATUTORY PROVISIONS RELATING TO THE ES- perty of widows § 432. The Revenue Act of April 29, 1857, provides that Taxation of prothe property of widows, or orphan children, to the amount and orphans. of $1,000, shall not be subject to taxation. Statutes, 1857, p. 326, sec. 2, subdivision 7. § 433. The undivided property of deceased persons may Undivided probe listed to the heirs, guardians, executors, or administra-perty of deceased tors, as the case may be, and a payment of taxes made by either, shall bind all the parties in interest for their equal proportions. Statutes, 1857, p. 329, last paragraph of section 6. § 434. Minor children, whose interest in lands has been Redemption by sold under a tax sale, may redeem within one year after minor of lands coming of age. Statutes, 1857, p. 334, sec. 23. sold taxes. of taxes. § 435. It is hereby made the duty of every Probate Court, Probate judge and Probate Judge, from time to time, to direct each and to direct paym❜nt every executor and administrator (which directions may be either specially given in each case or by a general order) to pay out of the funds of the estate, all taxes that have attached to, or accrued, against such estate, after the passage of this Act, and no order or decree for the distribution of any property of any decedent among the heirs or devisees made, until taxes shall be made, until all taxes that have attached to, or accrued against the estate shall have been paid. Statutes, 1857, p. 335, sec. 28. § 436. No estate shall be allowed to the husband, as tenant by courtesy, upon the decease of his wife, nor any estate in dower be allowed to the wife upon the decease of her husband. Act of April 17, 1850, defining the rights of husband and wife, sec. 10. § 437. Upon the dissolution of the community by the death of either husband or wife, one half of the common No decree of distribution to be paid. Husband and wife. 150 RELATING TO ESTATES OF DECEASED PERSONS. Disposition of property shall go to the survivor, and the other half to the community pro of wife. husband or perty upon death descendants of the deceased husband or wife, subject to the payment of the debts of the deceased. If there be no descendants of the deceased husband or wife, the whole shall go to the survivor, subject to such payment. tract by minor. Ibid, sec 11. § 438. A minor capable of contracting matrimony, may Marriage con- enter into a marriage contract, and the same shall be as valid as if he was of full age; provided, it be assented to in writing, by the person or persons whose consent is necessary to his marriage. No marriage the order of descent, etc. Ibid, sec. 20. § 439. The parties to any marriage contract, shall enter contract to alter into no agreement, the object of which shall be to alter the legal order of descent, either with respect to themselves, in what concerns the inheritance of their children or posterity, or with respect to their children between themselves, nor derogate from the rights given by law to the husband, as to the head of the family, or to the surviving husband or wife, as the guardian of their children. may insure life etc. Ibid, sec. 22. § 440. It shall be lawful for any married woman, by herMarried woman self or in her name, or in the name of any third person, with of her husband, his assent as her trustee, to cause to be insured for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance, shall be payable to her, to and for her own use, free from the claim of the representatives of her husband or his creditors; hut such exemption shall not apply where the amount of the premium annually paid, shall exceed three hundred dollars. The insurance may be made payable to her children. Statutes, 1854, p. 44. 8441. In case of the death of the wife before the decease of her husband, the amount of the insurance may be made payable to her children, and shall be received by them; or if under age, by their legal guardian for their use. Statutes, 1854, p. 44. |