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S614. Legacies are distinguished and designated, Nature and according to their nature, as follows:

designation of legacies.

1. A legacy of a particular thing, specified, and Specific. distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator;

tive.

2. A legacy is demonstrative when the particular Demonstra fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails, in whole or in part, resort may be had to the general assets, as in case of a general legacy;

3. An annuity is a bequest of certain specified Annuities. 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 Residuary. remains after all the bequests of the will are discharged;

5. All other legacies are general legacies.

$615. When a decedent dies intestate, the property, except such as is otherwise disposed of under section 640 of this Code, and such as is exempt under the CODE OF CIVIL PROCEDURE, is to be resorted to, in the following order, in payment of debts: 1. Personal property;

2. Real property other than estates of freehold;
3. Estates of freehold.

The reference is to section 83 of Appendix D, in the
original draft of this Code.

S616. The property of a testator, with the exception specified in the last section, is to be resorted to, in the following order, for the payment of debts and legacies;

1. Personal property, excepting such as is expressly exempted in the will;

2. Real property expressly devised to pay debts or legacies, where the personal property is exempted in

General.

Order of case of in

sale in

testacy.

[blocks in formation]

Legacies, how charged with debts.

Id.

Abatement.

Specific devises and legacies.

Heirs con

veyance

the will, or where the personal property which is not exempted is insufficient;

3. Real property which is not effectually devised; 4. Property, real or personal, charged with debts or legacies; but though real property be charged with the payment of legacies, the personal property is not to be exonerated;

5. The following property, ratably: real property, devised without being charged with debts or legacies, and specific and demonstrative legacies;

6. Personal property expressly exempted in the will.

$617. In the application of the personal property of a decedent to the payment of debts, legacies must 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 dower, or some right or interest;

4. Specific and demonstrative legacies.

S618. Legacies to husband, widow or kindred of any class, are chargeable only after legacies to persons not related to the testator.

$619. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will.

$620. In a specific devise or legacy the title passes by the will, but, in case of legacies, possession can only be obtained from the personal representative; and he may be authorized by the surrogate to sell the property devised or bequeathed, in the cases herein provided.

S621. The rights of a purchaser or incumbrancer of good unless real property, in good faith, and for value, derived from

proved

years.

any person claiming the same by succession, are not will is
impaired by any devise made by the decedent from within four
whom succession is claimed, unless the instrument
containing such devise is duly proved as a will, and
recorded in the office of the surrogate having jurisdic-
tion thereof, or unless written notice of such devise is
filed with the clerk of the county where the real pro-
perty is situated, within four years after the devisor's
death.

The provisions of the Revised Statutes (1 R. S., 748, § 3),
from which this section is taken, made the following
exceptions to the foregoing rule:

"1. Where the devisee shall have been within the
age of twenty-one years, or insane, or imprisoned, or
a married woman, or out of the state, at the time of
the death of such testator; or,

2. Where it shall appear that the will or codicil containing such devise, shall have been concealed by the heirs of such testator, or some one of them.

In which several cases, the limitation contained in
this section shall not commence, until after the expira-
tion of one year from the time when such disability
shall have been removed, or such will or codicil shall
have been delivered to the devisee, or his representa-
tive, or to the proper surrogate."

These disabilities are such as almost to destroy the value
of the provision, and the commissioners have therefore
omitted them. As, however, the probate is often
delayed by litigation, a provision that notice may be
filed in the office of the county clerk, with equal effect,
has been added.

of legatees

S622. 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.

The following sections are new.

interest.

$623. In case of a bequest of the interest or in- Bequest of come of a certain sum or fund, the income accrues from the testator's death.

Satisfaction.

Legacies

when due.

Interest.

Construction of

S 624. A legacy, or a gift in view of death may be satisfied, in whole or in part, before death.

$625. Legacies are due and deliverable, at the expiration of one year after the testator's decease. Annuities commence at the testator's' decease.

$626. 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.

S627. 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 void.

Executor not to act till quali fied.

Executor of

an executor.

Provisions

as to revocations.

Execution

and con

S 628. 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.

$629. An authority to an executor to appoint an executor is void.

$630. 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.

From 2 R. S., 71, §§ 15, 16.

S631. No executor of an executor, as such, has any power over the estate of the first testator.

2 R. S., 71, § 17; 448, § 11.

S632. The provisions of this Title in relation to the revocation of wills, apply to all wills made by any testator living at the expiration of one year from the time this Title takes effect.

2 R. S., 68, § 76.

S 633. The provisions of this Title do not impair the struction of validity of the execution of any will made before this

not affected.

Title takes effect, or affect the construction of any price wills such will.

2 R. S., 68, § 87.

$634. The term "will," as used in this Code, in- "Will" includes all codicils as well as wills.

2 R. S., 68, § 77.

S635. Except as otherwise provided, the validity and interpretation of wills are determined, 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 domicil.

$ 636. 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.

See Appendix D, in the original draft of this Code.

cludes codicils.

The law of applies.

what place

Liability of refor

beneficia

testator's obligations.

TITLE VI.

SUCCESSION.

The object of the very important change proposed by
this Title, is to simplify the settlement of estates, and
particularly titles to real property, by vesting the
whole estate of the decedent in the executors or
administrators.

By the existing law the term "real property," as between
the heir and the executor, has a very different extent
of meaning from the same term in other uses, and
doubtless different from that popularly attached to it
by testators and others contemplating the provision
which their families may require in case of their death.
There seems to be no reason why the property of the
landholder should be devolved by law upon one class
of persons, while the property of the merchant, who
may leave a family situated in the same circumstances,
is devolved by law upon another class, or in a different
method. For this reason the commissioners recom.
mend one method of distribution for both real and
personal property, and for this purpose have followed
substantially the method the law now pursues in
respect to personal property.

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