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A charge or encumbrance upon any estate, for tlie purpose

704



TitVI.ch.I.] CONVEYANCE— REVOCATION. §§ 1303. 1304

of securing the payment of money or the performance of
any covenant or agreement, is not a revocation of any will
relating to the same estate which was previously executed;
but the devise and legacies therein contained must pass,
subject to such charge or encumbrance.

HiMtory: Enacted March 21, 1872, founded upon § 15 Act
April 10, 1850, Stats. 1850, p. 178.

See Kerr's Cyc. C. C. for 4 pars, annotation.

140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary
disposition of land — "legacy" a like disposition of personalty).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

§1303. CONVEYANCE, WHEN NOT A REVOCATION.

A conveyance, settlement, or other act of a testator, by which
his interest in a thing previously disposed of by his will is
altered, but not wholly devested, is not a revocation; but
the will passes the property which would otherwise devolve
by succession.

HiMtory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

As to execution, revocation, and classes of wills, sec note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to revocation of will by change of testator's circumstances
and by sale of property, see 28 A. S. 356-357.

§ 1304. WHEN IT IS A REVOCATION. If the instrument
by which an alteration is made in the testator's interest in
a thing previously disposed of by his will expresses his
intent that it shall be a revocation, or if it contains provi-
sions wholly inconsistent with the terms and nature of the
testamentary disposition, it oi»oratos as a revocation thereof,
unless such inconsistent provisions depend on a condition
or contingency by reason of which they do not take offort.

IIi.«i<ory: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 12 pars, annotation.
As to execution, revocation, and classes of wills, see note
Kerr's C. C— 23 705



§§ 1305, 1306 CIVIL CODE. [Div.II,Pt.IV.

§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to passing of proceeds of land under a devise of realty,
see 58 L. 719-722.

§ 1305. KEVOCATIOJV OF CODICILS. The revocation of a
will revokes all its codocils.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

§1306. AFTER-BORJf CHILD, UNPROVIDED FOR, TO
SUCCEED. Whenever a testator has a child born after the
making of his will, either in his lifetime or after his death,
and dies leaving such child [1] unprovided for by any set-
tlement, and [2] neither provided for nor in any way men-
tioned in his will, the child succeeds to the same portion of
the testator's real and personal property that he would have
succeeded to if the testator had died intestate. But such
succession does not impair or affect the validity of any sale
of property made by authority of such will in accordance
with the provisions of section fifteen hundred and sixty-one
of the Code of Civil Procedure.

History: Enacted March '21, 1872, founded upon § 16 Act
April 10, 1850, Stats. 1850, p. 178; amended by Code Commission,
Act March 16, 1901, Stats, and Amdts. 1900-1, p. 402, held uncon-
stitutional, see history, § 4 ante; amendment re-enacted March
21, 1905, Stats, and Amdts. 1905, p. 606.

See "Kerr's Cyc. C. C. for 19 pars, annotation.

57 C. 484. 490 (construed with §1307); 88 C. 582, 585, 22 A. S.
336, 26 P. 521, 12 L. 46 (construed and applied); 113 C. 371, 376,
45 P. 689 (construed and applied); 145 C. 118, 120, 78 P. 369
(construed and applied).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to right of unborn child to take by descent, devise, and
distribution, see Kerr's Cyc. C. C. § 29 note pars. 67-134, and 12
A. S. 99.

706



Tit.VI,ch.T.] OMISSION OF CHILD. §1307

As to what is a provision in will for after-born children, see
15 A. S. 592-595.



§ 1307. CHILDREN OR ISSUE OF CHILDREN OF TESTA-
TOR UNPROVIDED FOR BY HIS ^VILL [TO SUC< FED].

When any testator omits to provide in his will [1] for any
of his children, or [2] for the issue of any deceased child,
unless it appears that such omission ivas intentional, such
child, or the issue of such child, has the same share in the
estate of the testator as if he had died intestate, and suc-
ceeds thereto as provided in the preceding section. But such
succession does not impair or affect the validity of any sale
of property made by authority of such will in accordance
with the provisions of section fifteen hundred and sixty-one
of the Code of Civil Procedure.

Hldtorys Enacted March 21, 1872, founded upon § 17 Act
April 10, 1850. Stats. 1850, p. 178; amended by Code Commission.
Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held uncon-
stitutional, see history, § 4 ante; amendment ro-enacted March
21, 1905, Stats, and Amdts. 1905, p. 606.

See Kerr's Cyc. C. C. for 47 pars, annotation.

57 C. 484, 487, 488, 489, 490, 491 (construed and applied); 81
C. 571, 575, 22 P. 908, 909 (construed and applied); 22 P. 1143,
1144 (cited and applied); 83 C. 322, 328, 17 A. S. 252, 23 P. 379,
381 (construed and applied); 86 C. 441, 443, 25 P. 15, 16 (con-
strued); 88 C. 582, 585, 22 A. S. 336, 26 P. 521, 12 L. 46 (con-
strued and applied); 99 C. 645. 647, 34 P.' 513 (construed and
applied); 107 C. 614, 616, 48 A. S. 164, 40 P. 1030 (construed and
applied); 119 C. 571, 573, 574, 575, 51 P. 860, 39 L. 689 (con-
strued and applied); 140 C. 282, 289, 291, 292, 73 P. 976 (construed
and applied); Myrick's Prob. Rep. 224, 225 (applied, cited, and
construed); 140 C. 468, 470, 74 P. 10 (term "child" must relate
to status, not to origin); 148 C. 233, 236, 82 P. 962, 113 A. S.
231 (erroneously cited for § 1307 C. C. P.).

As to children omitted from will, see 12 A. S. 97.

As to execution, revocation, and classes of wills, see note
§ 1270. ante; 2 Church's New Probate Law and Practice. 1514.
1535-1553.

As to gift to a class such as "children" and who are entitled
to take, see 73 A. S. 413-440.

As to right of adopted children, see 12 A. S. 100.

As to right of illegitimate children, see 12 A. S. 101.

707



§§ 1308, 1309 CIVIL CODE. [Div.II,Pt.IV.

As to rights of child or issue unintentionally omitted from
will, see 39 A. D. 740-744.

As to when will deemed to furnish sufficient evidence of inten-
tional omission, see 39 A. D. 740-744.

As to who are entitled to share as children of a decedent,
see 12 A. S. 80, 97-113.

§ 1308. SHARE OF AFTER-BORN CHILD, OUT OF WHAT
PART OF ESTATE TO BE PAID. When any share of the
estate of a testator is [1] assigned to a child born after the
making of a will, or [2] to a child, or [3] the issue of a child,
omitted in the will, as hereinbefore mentioned, the same must
first be taken from the estate not disposed of by the will,
if any; if that is not sufficient, so much as may be necessary
must be taken from all the devisees or legatees, in propor-
tion 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.

History: Enacted March 21, 1872, founded upon § 18 Act
April 10, 1850, Stats. 1850, p. 178.

See Kerr's Cyc. C. C. for 8 pars, annotation.

140 C. 282, 289, 292, 73 P. 976, 978 ("devise" denotes a testa-
mentary disposition of land — ^"legacy" a like disposition of per-
sonalty) ; 145 C. 118, 121, 122, 78 P. 369 (construed and applied).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

§ 1309. ADVANCEMENT DURING LIFETIME OF TESTA-
TOR. If such [1] children, or [2] their descendants, so unpro-
vided for, had an equal proportion of the testator's estate
bestowed on them in the testator's lifetime, by way of ad-
vancement, they take nothing in virtue of the provisions of
the three preceding sections.

History: Enacted March 21, 1872, founded upon § 19 Act
April 10, 1850, Stats. 1850, p. 179.

708



Tit.VI.ch.I.] DEATH BEFORE TESTATOR. §§1310,1311

As to advancements, see Kerr's Cyc. C. C. §§ 1351, 1395-1399
and notes, and Kerr's Cyc. C. C. P. § 1386 and note.

As to execution, revocation, and classes of wills, see note
§ 1270. ante; 2 Cliurch's New Probate Law and Practice, 1514.
1535-1553.

§ 1310. ON DEATH OF LEGATEE, IJEFORE TESTATOli,
LINEAL DESCENDANTS TAKE ESTATE. When any estate
is devised or bequeathed to any child, or other relation of
the testator, and the devisee or legatee dies before the testa-

tor, leaving lineal descendants, such descendants take the
estate so given by the will, in the same manner as the
devisee or legatee would have done had he survived the
testator.

HiMtory: Enacted March 21, 1872, founded upon § 20 Act
April 10, 1850, Stats. 1850, p. 179; amended March 18, 1905, Stats,
and Amdts. 1905, p. 150.

See Kerr's Cyc. C. C. for 8 pars, annotation.

139 C. 87 89, 72 P. 827 (construed and applied with other
sections); 140 C.' 282, 289, 290, 291, 73 P. 976, 978 ("devise" denotes
a testamentary disposition of land— "legacy" a like disposition
of personalty).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514.
1535-1553.

§1311. DEVISES OF LAND, HOW CONSTRUED. Every
devise of land in any will conveys all the estate of the devisor
therein, which he could lawfully devise, unless it clearly
appears by the will that he intended to convey a less estate.

History:. Enacted March 2], 1872. founded upon § 21 Act
April 10. 1850. Stats. 1850. p. 179.

See Kerr's Cyc. C. C. for 11 pars, annotation.

140 C. 282, 289, 73 P. 976. 978 ("devise" denotes a testa-
mentary disposition of land— "legacy" a like disposition of
personalty); 147 C. 236, 242, 81 P. 539 (construed— passing of
water-riglit by devise).

As to devise of community property, see Kerr's Cyc. C. C.
§§1401. 1402 and notes.

As to devise of all one's estate, see Kerr's Cyc. C. C. §1331
and note.

As to execution, revocation, and classes of wills, see note

709



§§1312,1313 CIVIL CODE. [Div.II.Pt.IV.

§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to property passing subject to debts, see Kerr's Cyc. C. C.
§§ 1359, 1363 and notes.

As to right of election under will in general, and effect
thereof, see Kerr's Cyc. C. C. §§ 1401, 1402 and note.

As to when will raises duty of election by widow, see 11
Encyc. L. 81-96.

§1312. WILLS PASS ESTATE SUBSEQUENTLY AC-
QUIRED. 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
such testator was entitled to devise at the time of his decease.

History: Enacted March 21, 1872, founded upon § 22 Act
April 10, 1850, Stats. 1850, p. 179; amended March 30, 1874, Code
Amdts. 1873-4, p. 233.

See Kerr's Cyc. C. C. for 25 pars, annotation.

140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary
disposition of land — ^"legacy" a like disposition of personalty) ;
148 C. 233, 236, 82 P. 962, 113 A. S. 231 (erroneously cited for
§ 1312 C. C. P.); 150 C. 498, 505, 89 P. 98 (construed with § 1332—
statute makes will speak as of time of testator's death, and has
effect of permitting devises to be general, at least as to after-
acquired property).

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice, 1514,
1535-1553.

As to when after-acquired property, both real and personal,
passes by will, see 30 Encyc. L. 617-620.

§ 1313. CHARITABLE, ETC., BEQUESTS. LIMITATION
AS TO TIME AND AMOUNT. No estate, real or personal,
shall be bequeathed or devised [1] to any charitable or
benevolent society or corporation, or [2] 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

710



I



Tit.VI.Ch.I.] CHARITABLE BEQUESTS. § 1313

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 deyises or bequests shall eol-
lectivelj' 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 aggre-
gate thereof to one-third of such estate; and all dispositions
of property made contrary hereto shall be Toid, and go to
the residuary legatee or devisee, next of kin, or heirs, accord-
ing to law.

History: Enacted March 18, 1874, Code Amdts. 1873-4, p. 276.
In force March 18, 1874.

See Kerr's Cyc. C. C. for 30 pars, annotation.

58 C. 457, 463, 470, 484, 485, 511, 514, 516, 517 (construed and
applied); 63 C. 620, 622 (construed and applied); 94 C. 376, 378,
379, 29 P. 775 (construed and applied); 98 C. 603, 606, 611, 33 P.
451. 452, 454 (construed and applied); 105 C. 646, 647, 38 P. 941
(applied); 123 C. 614, 624, 56 P. 461, 44 L. 364 (construed and
applied); 126 C. 296, 301, 58 P. 704 (referred to); 127 C. 90, 96,
59 P. 315 (clause in will, creating a charity, if not obnoxious
to law against perpetuities, is expressly warranted by this
section); 128 C. 1, 12, 13, 56 P. 550, 551, 60 P. 471 (construed
and applied); 138 C. 432, 434, 436, 71 P. 512 (construed with other
sections — what will not invalidate charitable bequest); 138 C.
546, 547, 548, 550, 71 P. 458 (construed and applied); 138 C. 552,
557, 558, 94 A. S. 70, 71 P. 707 (cited in discussion); 140 C. 282,
289, 73 P. 976, 978 ("devise" denotes a testamentary disposition
of land — "legacy" a like disposition of personalty); 148 C. 233,
236, 82 P. 962, 113 A. S. 231 (erroneously cited for § 1313, C. C.
P.); 150 C. 604, 605, 89 P. 345 (devise to charitable society is
void if made less than 30 days before decease of testator); 152
C. 327, 328, 329, 330, 92 P. 870, 871. 872 (construed — limitation
and restriction imposed is upon charitable uses and trusts —
bequest for superstitious use is not prohibited); 26 Wasli. 3 J,
66 P. 148 (construed and applied); Myr. Prob. Rep. 134, 135 (con-
strued and applied); Myr. Prob. Rep. 189, 200 (construed and
applied); 75 F. 480, 482 (construed and applied).

As to charitable uses and trusts, see Kerr's Cyc. C. C. § 715,
note pars. 27-59; also note § 847, ante.

As to execution, revocation, and classes of wills, see note
§ 1270, ante; 2 Church's New Probate Law and Practice. 1514,
1535-1553.



711



§ 1317 CIVIL CODE. [Div.II,Pt.IV.



CHAPTER II.

INTERPRETATION OP WILLS, AND EFFECT OF VARIOUS
PROVISIONS.

§ 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.

§ 1321. Harmonizing various parts.

§ 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.

§ 1326. Intestacy to be avoided.

§ 1327. Effect of technical words.

§ 1328. Technical words not necessary.

§ 1329. Certain words not necessary to pass a fee.

§ 1330. Power to devise, how executed by terms of will.

§ 1331. Devise or bequest of all real or all personal property,

or both.

§ 1332. Residuary clauses.

§ 1333. Same. [Bequest of residue, effect.]

§ 1334. "Heirs," "relatives," "issue," "descendants," etc.

§ 1335. Words of donation and of limitation.

§ 1336. To what time words refer.

§ 1337. Devise or bequest to a class.

§ 1338. When conversion takes effect.

§ 1339. When child born after testator's death takes under will.

§ 1340. Mistakes and omissions.

§ 1341. When devises and bequests vest.

§ 1342. When cannot be divested.

§ 1343. Death of devisee or legatee.

§ 1344. Interests in remainder are not affected.

§ 1345. Conditional devises and bequests.

§ 1346. Condition precedent, what.

§ 1347. Effect of condition precedent.

§ 1348. Conditions precedent, when deemed performed.

§ 1349. Conditions subsequent, what.

§ 1350. Devisees, etc., take as tenants in common.

§ 1351. Advancements, when ademptions.



§ 1317. TESTATOR'S INTENTION TO BE CARRIED OUT.

A will is to be construed according to the intention of the

712



Tit. VI, Ch. 1 1.] INTERPRETATION OF WILLS. § 1317

testator. Where his intention cannot have effect to its full
extent, it must have effect as far as possible.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 99 pars, annotation. ,. ,, ^q

58 C 387 404 (cited); 74 C. 365, 368, 16 P. 13, 14 (applied); 99
C 645, 648,' 34 P. 513 (applied); 123 C. 614, 625, 56 P. 461, 44 L
364 (applied); 56 P. 550, 553 (applied— principle which should
govern courts in construing wills and in determining validity
of trusts); 128 C. 1, 11, 60 P. 471 (construed); 132 C. 523, 566,
567 84 A. S. 70, 60 P. 442, 64 P. 1000 (construed and applied);
135* C 28 29, 87 A. S. 96, 66 P. 961 (applied); 136 C. 79, 83, 68 P.
306 (construed and applied); 138 C. 432, 436, 71 P. 512 (cited
in discussion); 139 C. 682. 686, 73 P. 606 (applied with other sec-
tions)- 142 C. 373, 375, 75 P. 1086 (applied with other sections);
1 C A 80 82 81 P. 752 (applied with other sections); 4 C. A.
16" 165 87 P.' 417 (construed with § 1324— all parts of will must
be" construed together to make, if possible, consistent and har-
monious whole); 4 C. A. 593, 596, 597, 88 P. 646 (construed and
applied with other sections); 21 F. 594, 598 (applied-no preca-
tory trust created when); 127 U. S. 300, 311, 312, 32 L. ed. 138,
143, 8 Sup. Ct. Rep. 1164 (referred to with other sections).
INTERPRETATION OF WILLS— GENERAIiLY.

As to generally.— See 2 Church's New Probate Law and Prac-
tice 1554, 1566-1579; 2 Obiter Dig. 966.

As to adopted children.-^ee 2 Church's New Probate Law and

Practice 1579. ^ r, skiqac iins

As to after-born children.— See Kerr's Cyc. C. C. §§ 1306, 1308,
1339 and notes; 2 Church's New Probate Law and Practice 157J;
6 L. N. S. 330; 13 L. N. S. 781.

As to charitable bequests.— See Kerr's Cyc. C. C. § 1313 and
note; 2 Church's New Probate Law and Practice 1575; 4 A. C.
1139; 9 A. C. 1202; 11 L. N. S. 509-528.

Same — Doctrine of cy pres. — See 1 A. C. 451.

Same— Favored by courts.— See 2 Churcli's New Probate Law
and Practice 1576; 80 A. D. 315.

As to execution and revocation of wills.— See note § 1270 ante.

As to holographic wills.-See Kerr's Cyc. C. C. § 1277 and note.

As to law governing, see Kerr's Cyc. C. C. § 1376 and note.

As to perpetuities.— See 2 Church's New Probate Law and
Practice 1575; 5 A. C. 431; 10 L. N. S. 564.

As to pretermitted children.— See Kerr's Cyc. C. C. §130' and
note; 2 Church's New Probate Law and Practice 1577; 115 A. fe.
587, 580; 119 A. S. 950.

As to terms in will, See 1 L. 433. ^

As to trusts created by or under wills.-See Kerr s Cyc. c.
C §§ 2221, 2222 and notes.

713



§ 1317 CIVIL CODE. [Div.II,Pt.IV.

As to what is a will. — See Kerr's Cyc. C. C. § 1270 and note.

Adopted children — As to. — See 2 Church's New Probate Law
and Practice 1579.

After-born children. — See "As to after-born children", this
note.

Clear devise not to be cut down. — See Kerr's Cyc. C. C. § 1322
and note; 2 Church's New Probate Law and Practice 1573; 3 A.
C. 675; 10. A. C. 176; 32 L. ed. 138.

Charges on property — As to generally, see 2 Obiter Dig. 968.

Same- — Created by implication. — See 2 Obiter Dig. 969.

Conditions precedent. — See 2 Obiter Dig. 968.

Conflicting and inconsistent provisions. — See 2 Church's New
Probate Law and Practice 1572.

Considering attending circumstances of testator. — See 2
Obiter Dig. 967.

Construction of wills made before the code went into effect
and not affected thereby. — See Kerr's Cyc. C. C. § 1375 and note.

Cy pres — Doctrine of. — See 1 A. C. 451.

Definite meaning of expression adhered to. — See 2 Obiter Dig.
966.

Desire or wish. — See 2 Obiter Dig. 971.

Different meanings to same words in same sentence. — See 2
Obiter Dig. 969.

Enumeration of certain things. — See 2 Obiter Dig. 969.

Executory devises. — See 2 Obiter Dig. 968.

Extent of devise. — See 2 Obiter Dig. 968.

Extrinsic evidence to show intention. — See 2 Obiter Dig. 969.

Favorable to be given. — See 2 Obiter Dig. 967.

Following construction of another will. — See 2 Obiter Dig. 967.

Holographic will. — See Kerr's Cyc. C. C. § 1277 and note.

Identification of subjects of gift. — See 2 Obiter Dig. 968.

Intention of testator to govern — As to generally, see Kerr's
Cyc. C. C. § 1319 and note; 2 Church's New Probate Law and
Practice 1568; 3 L. 847; 8 L. 741.

Same — How ascertained. — See 2 Church's New Probate Law
and Practice 1568.

Intention of testator, where manifest, to control — As to,
generally, see 3 L. 847; 8 L. 740; 9 L. 584; 10 L. 816; 2 Obiter
Dig. 970, 971.

Same — Meaning of words in ascertaining intent. — See 2 Obiter
Dig. 971.

Intention to make future disposition. — See 2 Obiter Dig. 971,
972.

Invalid clause in will, effect of on clauses otherwise valid. —
See 3 A. C. 950.

Language of will as affecting. — See Kerr's Cyc. C. C. §§ 1321,
1323 and notes; 2 Church's New Probate Law and Practice 1571;
1 L. 433.

714



Tit.VI.ch.II.] INTERPRETATION, INTENTION. • § 1318

Law in force to govern. — See Kerr's Cyc. C. C. § 1376 and note;
2 Church's New Probate Law and Practice 1569.

Limitation by conjecture not imposing. — See 2 Obiter Dig. D7fl.

Meaning of certain words. — See Kerr's Cyc. C. C. §§ 1334,
1335; 2 Church's New Probate Law and Practice 1569-1571; 4
A. C. 581; 5 A. C. 511; 5 A. C. 936; 7 A. C. 134; 2 L. 848; 11 L. 767.

Nature of thing directed to be done. — See 2 Obiter Dig. 971.

Of technical words.— See Kerr's Cyc. C. C. §§ 1327, 1328 and
notes.

Of words and provisions. — See 2 Cliurch's New Probate Law
and Practice 1566; 7 A. C. 128.

Oral declarations of testator as evidence of intention. — See
Kerr's Cyc. C. C. § 1318 and note.

Particular description controlling. — See 2 Obiter Dig. 968.

Partial testacy. — See 2 Church's New Probate Law and Prac-
tice 1574; 6 A. C. 1011.

Precatory words in will. — See 2 Church's New Probate Law
and Practice 1572.

Preternnitted children. — See "As to pretermitted children", this
note.

Quantum of estate devised. — See 2 Obiter Dig. 969.

Reforming will. — See 2 Obiter Dig. 974.

Rule favoring testacy. — See 2 Church's New Probate Law and
Practice 1574.

Rule in Shelley's Case. — See 2 Obiter Dig. 965.

Terms in will, of. — See 1 L. 433.

To prevent intestacy. — See 2 Obiter Dig. 967.

Vesting estates. — See 2 Obiter Dig. 968.

Whole instrument must be examined. — See 2 Obiter Dig. 967.

Words and phrases used in will as controlling, construction
and interpretation. — See Kerr's Cyc. C. C. § 1324 and notes; 2
Obiter Dig. 972-974.

Words referring to death or survivorship, effect of. — See
Kerr's Cyc. C. C. § 1336 and note.

Words to be generally given their ordinary grammatical
sense. — See Kerr's Cj'c. C. C. § 1324 and note.

§1318. INTENTIOX TO BE ASCERTAINED FKOM THE
WILL. In case of uncertainty arising upon tlie face of a
will, as to the application of any of its provisions, the testa-
tor'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.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 59 pars, annotation.
58 C. 387, 404 (cited); 81 C. 240, 243, 22 P. 655, 656 (applied);



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