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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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715



§§ 1319, 1320 CIVIL CODE. [Div.II,Pt.IV.

107 C. 303, 308, 40 P. 558 (cited in discussion); 108 C. 627, 649, 49
A. S. 97, 41 P. 772 (applied); 123 C. 337, 341 342, 55 P. 1011
(construed and applied); 129 C. 451, 453, 454, 62 P. 73 (applied);
132 C. 173, 176, 64 P. 268 (applied); 132 C. 666, 669, 61 P. 964, 64
P. 1071 (applied); 141 C. 295, 299, 74 P. 846 (cardinal rule for
construction of all wills); 142 C. 373, 375, 75 P. 1086 (construed
and applied with other sections); 143 C. 450, 456, 77 P. 160 (cited
in discuseion); 145 C. 118, 123, 78 P. 369 (effect, upon construc-
tion of will, that child was about to be born when will was
made); 151 C. 181, 184, 90 P. 448 (what is not a patent ambigu-
ity, but a typical case of latent ambiguity); 1 C. A. 80, 82, 81 P.
752 (construed and applied with other sections); 4 C. A. 593,
596, 88 P. 646 (construed and applied with other sections); 21
F. 594, 598 (applied — ^no precatory trust created when); 127 U.
S. 300, 311, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164 (referred to with
other sections).

As to admissibility of declaration of testators, see 3 A. D.
395.

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to extrinsic evidence to aid in the interpretation or applica-
tion of wills, see 46 A. R. 72.

§ 1319. RULES OF INTERPRETATION. In interpreting
a will, subject to the law of this state, the rules prescribed
by the following sections of this chapter are to be observed,
unless an intention to the contrary clearly appears.

History: Enacted March 21, 1872.

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

139 C. 87, 89, 72 P. 827 (this section has reference to those
succeeding sections only which deal with subjects of "interpret-
ing a will"— it does not refer to § 1343); 127 U. S. 300, 311, 312,
32 L. ed. 138, 143, 8 Sup. Ct. Rep. 1164 (referred to with other
sections).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to what law governs validity and interpretation of wills,
see Kerr's Cyc. C. C. §§ 1285, 1376 and notes.

§1320. SEVERAL INSTRUMENTS ARE TO BE TAKEN
TOGETHER. Several testamentary instruments, executed by
the same testator, are to be taken and construed together as
one instrument.

History: Enacted March 21, 1872.
716



TitVI.ch.II.] HARMONIZING PARTS. §§1321,1322

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

104 C. 554, 568, 38 P. 543 (cited).

As to construction and interpretation of wills, see note §1317,
ante; 2 Cliurch's New Probate Law and Practice, 1554, 1566-1579.

Consideration of other instrument in ascertaining intent of
testator.— See Kerr's Cyc. C. C. § 1318 and note pars. 8, 9.

§ 1321. HARMOMZI>G VARIOUS PARTS. All the parts
of a will are to be construed in relation to each other, and
so as, if possible, to form one consistent whole; but where
several parts are absolutely irreconcilable, the latter must
prevail.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 9 pars, annotation.

58 C 387 404 (cited); 94 C. 670, 674, 30 P. 99 (applied); 132
C. 666, 668,' 61 P. 964, 64 P. 1071 (cited); 138 C. 432, 435, 71 P.
512 (cited); 149 C. 200, 206, 85 P. 187 (applied); 1 C. A. 80, 82,
81 P. 752, 753 (applied with other sections); 21 F. 594, 598
(applied — no precatory .trust created when); 127 U. S. 300, 311.
32 L. ed. 138, 8 Sup. Ct. Rep. 1164 (referred to with other
SGctions)

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

§1322. IN WHAT CASE DEVISE NOT AFFECTED. A

clear and distinct devise or bequest canflot be affected by
any reasons assigned therefor, or by any other words not
equally clear and distinct, or by inference or argument from
other parts of the will, or by an inaccurate recital of or refer-
ence to its contents in another part of the will.

HLstory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 17 pars, annotation.

73 C 99 103, 14 P. 394, 397 (cited in discussion); 127 C. 90,
97 59 P. 315 (applied); 132 C. 666, 672, 61 P. 964, 64 P. 1071 (con-
strued and applied); 140 C. ?82, 289, 73 P. 976, 978 ("devise-
denotes a testamentary disposition of land— "legacy" a like dis-
position of personalty); 142 C. 1, 7, 75 P. 324 (applied with other
sections)- 21 F. 594, .^98 (applied— no precatory trust created
when); 127 U. S. 300, 311, 312, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164
(referred to with other sections).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As' to intention of testator, see Kerr's Cyc. C. C. §§ 1317 et seq.
and notes.

717



§§ 1323-1325 CIVIL CODE. [Div.II.Pt.IV.

§ 1323. WHEN AMBIGUOUS OR DOUBTFUL. Where the
meaning of any part of a will is ambiguous or doubtful, it
may be explained by any reference thereto, or recital thereof,
in another part of the will.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

As to bequests void for uncertainty, see 44 A. D. 94, 98, 101; 54
A. R. 213, 222.

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to extrinsic evidence to explain will, see 50 A. S. 279-284.

§ 1324. WORDS TAKEN IN ORDINARY SENSE. The

words of a will are to be taken in their ordinary and gram-
matical sense, unless a clear intention to use them in another
sense can be collected, and that other can be ascertained.
History: Enacted March 21, 1872.

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

58 C. 387, 404 (cited with other section in discussion); 74
C. 365, 368, 16 P. 13, 14 (applied); 123 C. 140, 143, 55 P. 681
(applied); 132 C. 666, 671, 61 P. 964, 64 P. 1071 (construed and
applied); 141 C. 295, 300, 74 P. 846 (applied — earlier English
rule stated); 1 C. A. 524, 527, 82 P. 549 (applied with § 1325); 4

C. A. 162, 165, 87 P. 417 (applied with other sections); 21 F.
594, 598 (applied — no precatory trust created when); 127 U.
S. 300, -311, 312, 32 L. ed. 138, 143, 8 Sup. Ct. Rep. 1164 (referred to
with other sections).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to construction of words and expressions in wills, see 8
L. 740; 10 L. 816.

As to what property passes by the word "goods," see 1 A.

D. 294.

As to what words vest an estate in married woman to exclu-
sion of husband, see 39 A. D. 773.

As to what words will pass real estate, see 14 A. D. 576.

§1325. WORDS TO RECEIVE AN OPERATITE CON-
STRUCTION. The words of a will are to receive an interpre-
tation which will give to every expression some effect, rather
than one which will render any of the expressions inopera-
tive.

Jlistorys ^n^-cted March 21, 1872.
718



Tit.VI.ch.II.] INTESTACY— AVOIDING. §§ 1326. 1327

See Kerr's Cyc. C. C. for 5 pars, annotation.

58 C. 387, 404 (cited with other sections in discussion); 99 C.
645, 648, 34 P. 513 (applied); 132 C. 173, 177, 64 P. 268 (applied);
142 C. 373, 375. 75 P. 1086 (applied with other sections); 1 C. A.
80, 82, 81 P. 752 (applied with other sections — certain uses of
words seem to be beyond absolute and unvarying definition —
among: these are precatory words); 1 C. A. 524, 527, 528, 82 P.
549 (applied with other sections); 4 C. A. 162. 165, 87 P. 417
(applied with other sections); 127 U. S. 300. 311, 312, 32 L. ed.
138. 143. 8 Sup. Ct. Rep. 1164 (referred to with other sections).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

§ 1326. IMESTACY TO BE AVOIDED. Of two modes of
interpreting a will, that is to be preferred which will prevent
a total intestacy.

Hitttory: Enacted March 21, 1872; amended by Code Commis-
sion. Act Marcli 16, 1901, Stats, and Amdts. 1900-1. p. 403, held
unconstitutional, see history. § 4 ante.

See Kerr's Cyc. C. C. for 7 pars, annotation.

104 C. 554. 568. 38 P. 643 (applied); 123 C. 140, 143, 55 P. 681
(applied); 123 C. 337, 343, 344, 55 P. 1011 (applied); 132 C. 523,
566, 60 P. 442, 64 P. 1000 (applied); 139 C. 682, 686, 73 P. 606
(applied with other sections); 142 C. 373. 375. 75 P. 1086 (effect
of false description of land in will); 145 C. 82, 86, 10 A. S. 17,
78 P. 340 (applied to holographic will); 147 C. 148, 153. 81 P.
406 (applied to residuary clauses).

As to construction and interpretation of wills, see note $ 1317,
ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579.

§1327. EFFECT OF TE( IIMCAL WORDS. Technical
woi'd.s in a will are to be taken in their technical sense, unless
the context clearly indicates a contrary intention, or unless
it satisfactorily appears that the will was drawn solely by
the testator, and that he was unacquainted with such techni-
cal sense.

HlMtory: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held
unconstitutional, see history, § 4 ante; amendment re-enacted
March 21, 1905, Stats, and Amdts. 1905. p. 606.

See Kerr's Cyc. C. C. for 2 pars, annotation.
74 C. 365, 368, 16 P. 13. 14 (applied).

As to construction and interpretation of wills, see note § 1317.
ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579.

719



§§ 1328-1330 CIVIL CODE. [Div.II,Pt.IV.

§ 1328. TECHNICAL WOEDS NOT NECESSARY. Techni-
cal words are not necessary to give effect to any species of
disposition by a will.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for- 2 pars, annotation.

127 U. S. 300, 311, 312, 32 L. ed. 138, 143, 8 Sup. Ct. Rep. 1164
(referred to with other sections).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

§ 1329. CERTAIN WORDS NOT NECESSARY TO PASS A
FEE. The term "heirs," or other words of inheritance, are
not requisite to devise a fee, and a devise of real property
passes all the estate of the testator, unless otherwise limited.

Hi-story: Enacted March 21, 1872.

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

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to meaning of "children," see 8 L. 740.

As to meaning of "issue," see notes 4 L. 117; 11 L. 305.

As to meaning of "next of kin," see 15 L. 300.

As to meaning of word "heirs," see 2 L. 457; 8 L. 740; 12
L. 721.

Construction of word "heirs." — See post § 1334.

Words of inheritance or succession not necessary to pass a
fee. — See ante § 1072.

§1330. POWER TO DEVISE, HOW EXECUTED BY
TERMS OF WILL. Real or personal property embraced in a
power to devise, passes by a will purporting to devise all the
real or personal property of the testator.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

107 C. 587, 598, 40 P. 810 (applied); 132 C. 523, 558, 84 A. S.
70, 60 P. 442, 64 P. 1000 (construed and applied); 140 C. 282, 289,
73 P. 976, 978 ("devise" denotes a testamentary disposition of
land — "legacy" a like disposition of personalty); 145 C. 344,
346, 78 P. 874 (referred to).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

720



Tit.VI.Ch.TI.] DEVISE OR BEQUEST. §§ 1.031^ 1332

§1331. DEVISE OR KEQUEST OF ALL REAL OR ALL
PERSONAL PROPERTY, OR BOTH. A devise or bequest of
all the testators' real or personal property, in express terms,
or in any other terms denoting his intent to dispose of all
his real or personal property, passes all the real or personal
property which he was entitled to dispose of by will at the
time of his death.

HlHtory: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 7 pars, annotation.

81 C. 240, 242, 22 P. 655, 656, (applied); 140 C. 282, 289, 73 P.
976, 978 ("devise" denotes a testamentary di.sposition of land—
"legacy" a like disposition of personalty); 188 U. S. 291, 296»
47 L. ed. 480, 482 (repeal of section referred to).

As to general and specific legacies, see Kerr's Cyc. C. C. § 1357
and note.

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

Effect of conveyance of property previously disposed of by
will. — See Kerr's Cyc. C. C. § 1303 and note.

Estate passing by devise of land. — See Kerr's Cyc. C. C. § 1311
and note.

Passing of after-acquired title, — See Kerr's Cyc. C. C. §1312
and note.



§ 1332. RESIDUARY CLAUSES. A devise of the residue
of the testator's real property passes all the real property
which he was entitled to devise at the time of his death, not
otherwise effectually devised by his will.

History: Enacted March 21, 1872; amended March 30, 1S74,
Code Amdts. 1873-4, p. 234.

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

107 C. 410, 416, 40 P. 552 (applied); 127 C. 90, 92, 59 P. 315
(construed and applied); 140 C. 282, 289, 73 P. 976, 978 ("devise"
denotes a testamentary disposition of land — "legacy" a like
disposition of personalty); 142 C. 1, 7, 75 P. 324 (residuary
clauses to be given a broad interpretation); 147 C. 148, 152, 81 P.
406 (not limited how); 150 C. 498, 505, 89 P. 98 (construed with
§ 1312 — 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); 150 C. 604, 605, 89 P. 345 (this
section abrogates earlier common-law-rule which made a dis-

721



§§ 1333, 1334 CIVIL CODE. [Div.II.Pt.IV.

tinction between devises of real property and , bequests of per-
sonal property).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to what passes under residuary clause, see notes, 5 L. 104;
9 L. 200.

Residuary legacy defined. — See Kerr's Cyc. C. C. § 1357 subd.
4 and note.

§1333. SAME. [BEQUEST OF RESIDUE, EFFECT.] A

bequest of the residue of the testator's personal property,
passes all the personal property which he was entitled to
bequeath at the time of his death, not otherwise effectually
bequeathed by his will.

History: Enacted March 21, 1872, amended March 30, 1874,
Code Amdts. 1873-4, p. 234.

107 C. 410, 416, 40 P. 552 (cited); 127 C. 90, 92, 59 P. 315 (con-
strued in connection with §1333); 140 C. 282, 289, 73 P. 976,
978 ("devise" denotes a testamentary disposition of land —
"legacy" a like disposition of personalty) ; 142 C. 1, 6, 7, 75 P.
324 (construed and applied, with other sections, to separate
property of testator).

See Kerr's Cyc. C. C. § 1332 and note.

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

§1334. "HEIRS," "RELATIVES," "ISSUE," "DESCEND-
ANTS," ETC. A testamentary disposition to "heirs," "rela-
tions," "nearest relations," "representatives," "legal repre-
sentatives," or "personal representatives," or "family," "issue,"
"descendants," "nearest" or "next of kin," of any person,
without other words of qualification, and when the terms
are used as words of donation, and not of limitation, vests
the property in those who would be entitled to succeed to
the property of such person, according to the provisions of
the title on succession, in this code.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 14 pars, annotation.
40 P. 35 (applied).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

722



Tit.VI,ch.[I.] WORDS OF DONATION. ETC. §§1335-1337

§1335. WOKDS OF I)0\ATIO\ AM> OF LIMFTATIO.V.

The terms mentioned in the last section are used as words
of donation, and not of limitation, when the property is given
to the person so designated, directly, and not as a qualifica-
tion of an estate given to the ancestor of such person.

IllMlory: Knactod Marcli 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.
As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's Now Probate Law and Practice, 1554, 1566-1579.

§ 1336. TO >VHAT TIME WORDS REFEK. Words in a
will referring to death or survivorship, simply, relate to the
time of the testator's death, unless possession is actually
postponed, when they must be referred to the time of posses-
sion.

IILstory: Enacted March 21, 1872.

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

114 C. 186, 190, 45 P. 1063 (construed and applied): 149 C.
146, 150, 85 P. 308, 9 A. C. 1143 (same rule exists irrespective
of statute); 152 C. 753, 759, 93 P. 1012. 1015 (applied).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Churcli's New Probate .Law and Practice, 1554. 1566-1579.

As to time to whicli bequest relates, see 9 L. 211.

§ 1337. DEVISE OR REQUEST TO A (LASS. A testa-
mentary disposition to a class includes every person answer-
ing the description at the testator's death; but when the pos-
session is postponed to a future period, it includes also all
persons coming within the description before the time to
which possession is postponed.

lllMtory: Enacted Marcli 21. 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

As to construction and interpretation of wills, see note S 1317.
ante; 2 Church's New Probate Law and Practice, 1554, 1666-1579.

79 C. 613, 625, 22 P. 50 (applied); 119 C. 406, 410, 51 P. 629
(applied); 132 C. 523. 578. 60 P. 442. 64 P. 1000 (applied).

As to posthumous children, see Kerr's Cyc. C. C. $ 1339 and
note.

723



§§ 1338-1340 CIVIL CODE. [Div.II.Pt.IV.

§1338. WHEN CONVEESION TAKES EFFECT. When a
will directs the conversion of real property into money, such
property and all its proceeds must be deemed personal prop-
erty from the time of the testator's death.

History: Enacted March 21, 1872.

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

Ill C. 628, 638, 44 P. 225 (section does not stand in way of
action for partition of land distributed to trustees) ; 143 C. 265,
270, 101 A. S. 118, 76 P. 1020 (construed and applied); 144 C. 121,
127, 77 P. 825 (construed and applied).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

§1339. WHEN CHILD BORN AFTER TESTATOR'S
DEATH TAKES UNDER WILL. A child conceived before,
but not born until after a testator's death, or any other
period when a disposition to a class vests in right or in pos-
session, takes, if answering to the description of the class.

History: Enacted March 21, 1872.

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

132 C. 523, 580, 84 A. S. 70, 60 P. 442, 64 P. 1000 (cited with
§ 29 in discussion).

As to construction and interpretg.tion of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

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

Rights of child born after making will. — See Kerr's Cyc. C. C.
§ 1306 and note.

Rights of child conceived but not yet born. — See Kerr's Cyc.
C. C. § 29 and note.

§1340. MISTAKES AND OMISSIONS. When, applying a
will, it is found that there is an imperfect description, or that
no person or pi-operty exactly answers the description, mis-
takes and omissions must be corrected, if the error appears
from the context of the will or from extrinsic evidence; but
evidence of the declarations of the testator as to his inten-
tions cannot be received.

Hi.story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.
108 C. 627, 659, 49 A. S. 97, 41 P. 772 (cited with § 1318 in

724



TitVI.Ch.II.] DEVISE VESTS WHEN. § 1341

discussion); 119 C. 571, 575, 51 P. 860, 39 L. 689 (construed and
applied); 123 C. 337, 340, 341, 55 P. 1011 (applied); 127 C. 90,
94, 59 P. 315 (applied); 142 C. 373, 374, 376, 75 P. 1086 (extrinsic
evidence cannot aid will which is hopelessly uncertain); 151 C.
181, 184, 185, 90 P. 448 (distinction as to intention — testator's
positive instructions to his attorney, in the very performance of
testamentary act, may be received in evidence without violating
this section).

As to admissibility of declarations of testator, see 59 A. R. 399.

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to correction of mistakes in wills, see 40 A. R. 292.

As to parol evidence to explain or identify subject of
beneficiary will, see 8 A. R. 669-673.

When will lost, spoliated, or destroyed after death. — See 5
Prob. Rep. Ann. 553.

§ 1341. WIIEX DEVISES AND HEQIESTS VEST. Testa-
mentary dispositions, including devises and bequests to a per-
son on attaining majority, are presumed to vest at the testa-
tor's death.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 23 pars, annotation.

73 C. 99, 102, 14 P. 394, 396 (applied); 122 C. 626. 627. 55 P.
595 (applied); 132 C. 523, 578, 84 A. S. 70, 60 P. 442, 64 P. 1000
(construed and applied); 137 C. 354, 355, 70 P. 459 (applied);
140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testamentary
disposition of land — "legacy" a like disposition of personalty);
149 C. 712, 717, 87 P. 573 (property of decedent vests wlien and
how); 2 C. A. 468, 475, 83 P. 577 (trustee under will takes at
death of testator).

As to construction and interiirolation of wills, .see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to vesting of estates under wills, see 1 L. 551; 3 L. 816;
9 L. 211.

As to vesting of legacy notwitlistanding failure to perforin
conditions, see 78 A. D. 234.

As to vesting of legacies — When vested and when contingent.
—See 10 A. S. 471.

As to when legacies are vested and contingent, see 37 A. S. 147.

Future estate not defeated by determination of precedent
estate. — See ante § 742.

Limitations which may be put upon future estates. — See
Kerr's Cyc. C. C. § 767 and note.

Rights of child conceived before but born after testator's
death. — See Kerr's Cyc. C. C. § 1339 and note.

725



§§ 1342-1344 CIVIL CODE. [Div.II,Pt.IV.

Rig-hts of children born after making of will. — See Kerr's Cyc.
C. C. § 1306 and note, and § 29 and note.

Vesting of devise or legacy depending on condition precedent.
— See Kerr's Cyc. C. C. § 1347 and note.

§ 1342. >VHEX CANNOT BE DEVESTED. A testamentary
disposition, when vested, cannot be devested unless upon the
occurrence of the precise contingency prescribed by the testa-
tor for that purpose.

History: Enacted March 21, 1872.

§ 1343. DEATH OF DEVISEE OB LEGATEE. If a devisee
or legatee dies during the lifetime of the testator, the testa-
mentary disposition to him fails, unless an intention appears
to substitute some other in his place, except as provided in
section thirteen hundred and ten.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 234; amended by Code Commission, Act
March 16, 1901, Stats, and Amdts. 1900-1, p. 403, held unconstitu-
tional, see history, § 4 ante.

See Kerr's Cyc. C. C. for 7 pars, annotation.

98 C. 603, 606, 33 P. 451, 453 (applied); 134 C. 320, 324, 66 P.
370 (construed); 139 C. 87, 89, 72 P. 827 (construed); 140 C.
282, 289, 290, 73 P. 976, 978 (construed — comments upon use of
terms "devise", "legatee", etc.).

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice, 1554, 1566-1579.

As to effect of death of devisees before testator, see 94 A. D.
156.

As to lapse of devise or bequest by death of beneficiary before
testator, see 28 A. S. 360.

§ 1344. INTERESTS IN REMAINDER ARE NOT AF-

FECTED. The death of a devisee or legatee of a limited
interest before the testator's (Jeath does not defeat the inter-
ests of persons in remainder, who survive the testator.
History: Enacted March 21, 1872.

See Kerr's Cj'c. C. C. for 2 pars, annotation.

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

726



Tit.VI.ch.II.] CONDITIONS. §§ 1345-1347

As to construction and interpretation of wills, see note § 1317,
ante; 2 Church's New Probate Law and Practice. 1554, 1566-1579.



§ 1345. CONDITIONAL DEVISES AND BEQUESTS. A con-



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