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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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ditional disposition is one which depends upon the occurrence
of some uncertain event, by whicli it is either to take effect
or be defeated.

History: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 5 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 conditions in will preventing legatee from contesting
will upon pain of forfeiture, see 60 A. D. 113.

As to conditional obligation, see Kerr's Cyc. C. C. §§ 1434 et
seq. and notes.

As to conditions of ownership, see Kerr's Cyc. C. C. §§ 707 et
seq. and notes.

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

As to distinction between words of limitation and condition,
see 9 L. 165.

As to occurrences of contingencies, see 10 L. 816.

As to validity of conditions in devises and bequests, see Kerr's
Cyc. C. C. § 1281 and note.

§ 1346. CONDITION PRECEDENT, ^VHAT. A condition
precedent in a will is one which is required to be fulfilled
before a particular disposition takes effect.

History: Enacted March 21, 1872.

As to certain conditions precedent being void, see Kerr's Cyc.
C. C. § 709 and note.

As to conditions precedent, see 1 L. 837; 9 L. 165.

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

§ 1347. EFFECT OF CONDITION PRECEDENT. Where a
testamentary disposition is made upon a condition precedent,
nothing vests until the condition is fulfilled, except where
such fulfilment is impossible, in which case the disposition
vests, unless the condition was the sole motive thereof, and

727



§§ 1348-1350 CIVIL CODE. [Div.II,Pt.IV.

the impossibility was unknown to the testator, or arose from
an unavoidable event subsequent to the execution of the will.

History: Enacted March 21, 1S72.

As to conditions precedent and subsequent in wills, and
impossibility of performance, see 70 A. S. 833 et seq.

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

§1348. CONDITIONS PRECEDENT, WHEN DEEMED
PERFORMED. A condition precedent in a will is to be
deemed performed when the testator's intention has been sub-
stantially, though not literally, complied with.

History: Enacted March 21, 1872.

§ 1349. CONDITIONS SUBSEQUENT, WHAT. A condition
subsequent is where an estate or interest is so given as to
vest immediately, subject only to be devested by some subse-
quent act or event.

History:. Enacted March 21, 1872.

As to conditions subsequent, see 1 L. 837; 9 L. 165.

As to conditions subsequent in will; impossibility of per-
formance, see Kerr's Cyc. C. C. §§ 707, 708 and notes; 70 A. S. 833
et seq.

As to conditions in wills in restraint of marriage, see 1 L. 837.

As to devise during widowhood, see 1 L. 432; 9 L. 573.

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

§ 1350. DEVISEES, ETC., TAKE AS TENANTS IN COM-
MON. A devise or legacy given to more than one person
vests in them as owners in common.

History: Enacted March 21, 1872.

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);
141 C. 432, 434, 75 P. 53 (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.

As to estates in common, see Kerr's Cyc. C. C. §§ 685, 686 and
notes.

728



Tit.VI,ch.II.] ADVANCEMENTS. § 1351

§1351. ADVANCEMENTS, WHEN ADEMPTIONS. Ad-
vancements or gifts are not to be taken as ademptions of gen-
eral legacies, unless such intention is expressed by the testa-
tor in writing.

History: Enacted March 21, 1872. .

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

As to ademption by advancement, see 95 A. S. 344.

As to ademption of legacies, see 11 A. D. 470; 37 A. D. 667;
1 L. 203.

As to advancement in cases of intestacy, see Kerr's Cyc. C.
C. §§ 1395-1399 and notes.

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



729



§ 1357 CIVIL CODE. [Div.II.Pt.IV.

CHAPTER III.

GENERAL PROVISIONS.

§ 1357. Nature and designations of legacies:
,..1. Specific. [Legacy.]

2. Demonstrative. [Legacy.]

3. Annuities.

4. Residuary. [Legacy.]

5. General. [Legacy.]
§ 1358. Estates chargeable.

§ 1359. Order of resort to estate for debts.

§ 1360. Same. [For legacies.]

§ 1361. Same. fLegacies to kindred.]

§ 1362. Abatement.

§ 1363. Specific devises and legacies.

§ 1364. Heir's conveyance good, unless will is proved within

four years.

§ 1365. Possession of legatees.

§ 1366. Bequest of interest.

§ 1367. Satisfaction.

§ 1368. Legacies, when due.

§ 1369. Interest.

§ 1370. Construction of these rules.

§ 1371. Executor according to the tenor.

§ 1372. Power to appoint is invalid.

§ 1373. Executor not to act till qualified.

§ 1374. Provisions as to revocations.

§ 1375. Execution and construction of prior wills not affected.

§ 1376. Law governing validity and interpretation of wills.

§ 1377. Liability of beneficiaries for testator's obligations.

§1357. NATURE AND DESIGNATION OF LEGACIES.

Legacies are distinguished and designated, according to tlieir
nature, as follows:

1. [Specific legacy.] A legacy of a particular thing, speci-
fied and distinguished from all others of the same kind belong-
ing to the testator, is specific; if such legacy fails, resort
cannot be had to the other property of the testator;

2. [Demonstratire lej^acj.] A legacy is demonstrative
when the particular fund or personal property is pointed out
from which it is to be taken or paid; if such fund or property

730



Tit.VI.Ch.III.] PASSING AND VESTING. § 1357

fails, in whole or in part, resort may be had to the general
assets, as in case of a general legacy;

3. [Aniniities.] An annuity is a bequest of certain specified
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. [Residuary legacy.] A residuary legacy embraces only
that which remains after all the bequests of the will are dis-
charged ;

5. [General legacy.] All other legacies are general lega-
cies.

HLstory: Enacted Marcli 21, 1872.

See Kerr's Cyc. C. C. for 31 pars, annotation.

66 C. 330, 331, 332, 5 P. 507, 508 (cited); 66 C. 432, 437, 439, 440,
6 P. 7, 11, 12, 13 (construed); 107 C. 303, 308, 40 P. 558 (con-
strued); 112 C. 521, 526, 53 A. S. 224, 44 P. 808 (construed); 119 C.
131, 136, 51 P. 44 (cited); 140 C. 282, 289, 73 P. 976, 978 ("devise"
denotes a testamentary disposition of land — "legacy" a like dis-
position of personalty); 143 C. 450, 453, 77 P. 160 (cited); 145 C.
lis, 121, 78 P. 369 (referred to); 150 C. 498, 503, 504, 505, 89 P.
98 (construed with §§ 1358, 1359, 1360, 1362 — specific devises
and specific legacies are free from any contribution to payment
of general legacies — question wliether testamentary gift is
specific or general, how determined).

PROPERTY PASSING BY WILL — VESTING OF INTEREST.

As to generally, see 2 Churcli's New Probate I^aw and Practice
1580, 1588-1610.

Abatement — Of legacies, order of as between demonstrative
legacies and specific legacies, to pay debts. — See 4 L. N. S. 922.

Same — Same — In case of deficiency of assets. — See 8 A. S. 720.

Accumulations. — See Kerr's Cyc. C. C. §§ 722-726 and notes; 2
Church's New Probate Law and Practice 1601; also note §722,
ante.

Advancements to heirs, doctrine of. — See 12 L. 566.

After-acquired property passes with will. — See Kerr's Cyc.
C. C. § 1312 and note; 2 Churcli's New Probate Law and Prac-
tice 1602.

Annuities. — See Kerr's Cyc. C. C. § 1368 and note; 2 Church's
New Probate Law and Practice 1601

Beneficiaries — Liable for testator's obligations. — See Kerr's
Cyc. C. C. § 1377 and note.

Same — Of benefit certificate. — See 2 Church's New Probate
Law and Practice 1601.

731



§ 1357 CIVIL CODE. [Div.II,Pt.IV.

Bequest — As to, generally, see "Devises and bequests", this
note.

Same — Of interest or income of a certain fund, income accru-
ing- thereon from testator's death. — See Kerr's Cyc. C. C. § 1366
and note.

Same — Of stocks, bonds or notes, general or specific. — See 11
L. N. S. 49-87.

Same-^To class — As to generally, see 'Kerr's Cyc. C. C. § 1337
and note.

Same — Same — As including persons dead before making of
will. — See 5 A. C. 243.

Same — Same — Riglit of representatives of pre-deceased child
to share in. — See 2 A. C. 643.

Capacity to take by will. — See Kerr's Cyc. C. C. § 1275 and
note.

Class — Bequest to as including persons dead before making
of will.— See 5 A. C. 243.

Same — Devise or bequest to— As to generally, see Kerr's Cyc.
C. C. §1337 and note.

Common law distinctions abrogated. — See 2 Church's New
Probate Law and Practice 1591.

Community property — Extent to which may be disposed of by
will. — See 2 Church's New Probate Law and Practice 1602.

Condition subsequent in will. — See Kerr's Cyc. C. C. § 1349
and notes; 70 A. S. 83; 9 L. 165; 9 L. 573; 31 L. 432; 31 L. 837.

Conditional and contingent devises — As to, generally, see
Kerr's Cyc. C. C. §§1346-1348 and notes, §1345 and note; 2
Church's New Probate Law and Practice 1600; 8 A. C. 1150.

Same — Words merely declaratory of purpose or consideration
of devises as creating. — See 3 A. C. 38.

Construction, validity and effect of devises and legacies. — See
2 L. 175; 10 L. 816; 11 L. 185; also note § 1317 ante.

Contribution among legatees to pay debts. — See Kerr's Cyc. C.
C. § 1364 and note.

Conversion — Of property. — See 2 Obiter Dig. 984.

Same — Of real property into money, effect of, when directed to
be made by the will. — See Kerr's Cyc. C. C. § 1338 and note.

Corporation — Capacity to take by will. — See 18 A. D. 541; 80
A. D. 315; 2 Prob. Rep. Ann. 674; see also "Municipal corpora-
tions", this note.

Same — Right to contest power to take and hold. — See 60 A.
S. 318, 321; 32 L. 293.

Same — Same — In excess of charter authority. — See 9 L. N.
S. 689.

Creditor as legatee. — See 2 Church's New Probate Law and
Practice 1600.

Cumulative legacies. — See 2 Church's New Probate Law and
Practice 1593.

732



Tit. VI, Ch. III.] PASSING AND VESTING. §1357

Debts of decedent — Contribution among legatees to pay. — See
Kerr's Cyc. C. C. § 1364 and note.

Same — Entire estate chargeable with, except otherwise pro-
vided. — See Kerr's Cyc. C. C. § 1358 and note.

Same — Liability of beneficiaries for. — See Kerr's Cyc. C. C.
§1377 and note.

Same — Order of resort to estate for. — See Kerr's Cyc. C. C.
§ 1359 and note.

Same — Provision by will for payment of, effect of, when insuf-
ficient. — See Kerr's Cyc. C. C. § 1362 and note.

Demonstrative legacies. — See 2 Church's New Probate Law
and Practice 1593.

Devise — Or bequest of all real or personal property, or both —
What passes by. — See Kerr's Cyc. C. C. § 1331 and note.

Same — Over, of life estate with power of disposition, validity
and effect of. — See 7 A. C. 953.

Same — To unnamed he^rs. — See 2 Church's New Probate I^aw
and Practice 1592; 80 A. D. 314.

Devisee of life estate — Power to sell. — See 2 Church's New
Probate Law and Practice 1595; 7 A. C. 953.

Devises and bequests — As to generally, see 2 Church's New
Probate Law and Practice 1589.

Same — As to tlie meaning of certain words used in devise or
bequest. — See Kerr's Cyc. C. C. §1329 and note; 2 Church's New
Probate Law and Practice 1590; 3 A. C. 420.

Same — As to wills, legacies, and devises generally, see note
§ 1270, ante.

Same — Advancements to heirs. — See 12 L. 566, 570.

Same — Bequest to a class, as including persons dead before
making of w^ill. — See 5 A. C. 243.

Same — Capacity — Of corporation to take by will. — See 18 A.
D. 541. 80 A. D. 315; 60 A. S. 318; 32 L. 293; 9 L. N. S. GS9; 2
Prob. Rep. Ann. 674-679.

Same — Same — To take by will. — See Kerr's Cyc. C. C. §1275
and note.

Same — Class, devise or bequest to. — See Kerr's Cyc. C. C.
§ 1337 and note.

Same — Common law distinctions abrogated. — See 2 Oluircli's
New Probate Law and Practice 1591.

Same — Construction, validity and effect of devise and legacies.
— See 2 L. 175; 10 L. 816; 11 L. 185; also note § 1317 ante.

Same — Conversion of real proi)erty into money, effect of
when directed to be made by the will. — See Kerr's Cyc. C. C.
§ 1338 and note.

Same — Devise of land, profits, income, etc. — Estate passes by.
—See 9 A. C. 247.

Same — Devise or bequest of real or personal property, or
both — What passes by. — See Kerr's Cyc. C. C. §1331 and note.

733



§ 1357 CIVIL CODE. [Div.II,Pt.IV.

Same — Devise to corporation. — ^See 18 A. D. 541; 80 A. D. 315.

Same — Devises to unnamed heir. — See 2 Church's New Probate
Law and Practice 1592; 80 A. D. 314.

Same — Executor may purchase legacy. — See 2 Cliurcli's New
Probate Law and Practice 1591.

Same — Land, devise of, how construed,— See Kerr's Cyc. C.
C. § 1311 and note; also note § 1317, ante.

Same— -Legacies — Controlled by testator's intention. — See
Kerr's Cyc. C. C. § 1370 and note.

Same — Same — Specific, demonstrative, annuities, residuary and
general — As to, see Kerr's Cyc. C. C. § 1357 and note.

Same — Municipal corporation as devisee or legatee. — See 4
Prob. Rep. Ann. 113.

Same — Particular description as a limitation. — See 2 Church's
New Probate Law and Practice 1591.

Same — Power to devise, how executed under the will. — See
Kerr's Cyc. C. C. § 1330 and note.

Same — Shares of stock appurtenant to land. — See 2 Church's
New Probate Law and Practice 1592.

Same — Substitution of land for legacy, election. — See Kerr's
Cyc. C. C. § 1338 and note; 2 Church's New Probate Law and
Practice 1591.

Same — Witnesses as devisees, when gift to void. — See Kerr's
Cyc. C. C. §§ 1282, 1283 and notes.

Distinction between annuity and legacy for life, as respects
commencement. — See Kerr's Cyc. C. C. § 1368 and note.

Election by widow — As to, generally, see 2 Church's New
Probate Law and Practice 1603.

Same — By acceptance of devise. — See 2 Church's New Probate
Law and Practice 1605.

Same — By acts in pais. — -See 2 Church's New Probate Law and
Practice 1605.

Same — Death of before, effect of. — See 2 L. N. S. 959.

Same — Effect of. — See 2 Church's New Probate Law and Prac-
tice 1604.

Same — Same — On administration. — See 4 L. N. S. 1065.

Same — Right of creditors of personal representatives to make
or control for or against will, or between different provisions
of will or statute. — See 11 L. N. S. 379.

Same — Rule as to, between inconsistent rights. — See 12 L. 227.

Same — Taking bond by descent and under will. — See 2
Church's New Probate Law and Practice 1604.

Same — To take under will. — ^See 7 L. 454.

Same — Under mistake and misapprehension. — See 2 Church's
New Probate Law and Practice 1605.

Estate of testator cliargeable with debts, except where other-
wise provided. — See Kerr's Cyc. C. C. § 1356 and note.

734



Tit.VI.ch.III.] PASSING AND VESTING. § 1357

General legacies. — See 2 Church's New ProVjate Law and
Practice 1592.

Gifts — When payable out of residuum. — See 2 Church's New
Probate Law and Practice 1597.

Gifts causa mortis — Altered circumstances. — See 2 Church's
New Probate Law and Practice 1609.

Same — Contingent remainder. — See 2 Church's New Probate
Law and Practice 1608.

Same — Distinguished. — See Kerr's Cyc. C. C. § 1367 and note;
also note § 1270 ante; 2 Church's New Probate Law and Prac-
tice 1607.

Same — Lapsed legacies and devises. — See Kerr's Cyc. C. C.
§ 1343 and notes; 2 Church's New Probate Law and Practice
1608.

Intestacy as to residuum. — See 2 Church's New Probate Law
and Practice 1596.

Lands — Devises of, how construed. — See Kerr's Cyc. C. C. S 1311
and note; also note § 1317 ante.

Same — Profits, income, etc, of land — Estate passing l>y dovise
of.— See 9 A. C. 247.

Legacies — Abatement of in case of deficiency of assets. — See
8 A. S. 720.

Same — Application of to payment of debts. — See 2 Church's
New Probate Law and Practice 1599.

Same — Same — Order of abatement, as between demonstrative
legacies and specific legacies. — See 4 L. N. S. 922.

Same — Control by testator's intention. — See Kerr's Cyc. C. C.
§ 1370 and note; also § 1317 ante.

Same — Specific, demonstrative. annuities, residuary and
general — As to. — See Kerr's Cyc. C. C. S 1357 and note.

Life estates — As to, generally, see 2 Cliurch's New Probate
I^w and Practice 1594.

Same — Life tenant purchasing outstanding title. — See 2
Church's New Probate Law and Practice 1594.

Same — Power of devisee to sell. — See 2 Church's New Probate
Law and Practice 1595; 7 A. C. 953.

Same — Residuary devise of. — See 2 Church's NfW Probate Law
and Practice 1596.

Life tenant purchasing outstanding title, elTcct of. — See 2
Cliurch's New Prol)ato Law and I'ractice 1594.

Meaning of certain words used in wills. — See Kerr's Cyc. C.
C. § 1329 and note; 2 Church's New Probate Law and Practice
1590; 4 A. C. 420.

Municipal corporations as legatees or devisees. — See 4 Prob.
Hop. Ann. 113; see also "Corporations", this note.

Operation of wills. — See 2 Obiter Dig. 963.

Particular description as a limitation. — Sec 2 Cliurch's New
Probate Law and Practice 1591.

735



§ 1357 CIVIL CODE. [Div.II.Pt.IV.

Payment of legacies — As to, generally, see 2 Church's New
Probate Law and Practice 1597.

Same — Ademption and abatement of. — See Kerr's Cyc. C. C.
§ 1351 and note; 2 Church's New Probate Law and Practice 1599;
37 A. D. 667; 95 A. S. 342.

Same — Same — Of any one of a class. — See Kerr's Cyc. C. C.
§ 1632 and note.

Same-T-rBond by legatee. — See 2 Church's New Probate Law
and Practice 1599.

Same — Interest on. — See Kerr's Cyc. C. C. § 1369 and note; 2
Church's New Probate Law and Practice 1598; 53 A. S. 224.

Same — Order of resort to property of testator for payment of.
—See Kerr's Cyc. C. C. §§ 1360, 1361 and notes.

Same — Out of residuum. — See 2 Church's New Probate Law
and Practice 1597.

Same — When due and deliverable. — See Kerr's Cyc. C. C. § 1368
and note.

Power to devise, how executed under the will. — See Kerr's
Cyc. C. C. § 1330 and note; also note § 1270, ante.

Predeceased child — Right of representative of to share in
remainder given to children as a class. — See 2 A. C. 645.

Preferred legacies. — See 2 Church's New Probate Law and
Practice 1600.

Residuary clauses in wills. — See Kerr's Cyc. C. C. §§ 1332, 1333
and notes.

Residuary devise of estate for life. — See 2 Church's New Pro-
bate Law and Practice 1596.

Residuary legacies — As to, generally, see Kerr's Cyc. C. C.
§§1332, 1333; 2 Church's New Probate Law and Practice 1595;
2 A. C. 645.

Same — Gifts, when payable out of residuum. — See 2 Church's
New Probate Law and Practice 1597.

Same — Intestacy as to residuant. — See 2 Church's New Pro-
bate Law and Practice 1596.

Same — Residuary devise of life estate. — See 2 Church's New
Probate Law and Practice 1596.

Same — Residuum of lands under undelivered deeds. — See 2
Church's New Probate Law and Practice 1597.

Same — Revocation of by gift of particular estate of interest.
—See 5 A. C. 789.

Same — Where life estate is specifically bequeathed. — See 2
Church's New Probate Law and Practice 1597.

Revocation of testamentary gift of particular estate or inter-
est as a revocation of remainder or limitation over. — See 5
A. C. 789.

Specific legacies — As to, generally, see 2 Church's New Pro-
bate Law and Practice 1592.,

Same — For life, delivery of inventory of property to second
legatee. — See Kerr's Cyc. C. C. § 1365 and note.

736



Tit.VI.Ch.lll.] CHARGES— RESORT. §§1358,1359

Substitution of land for legacy, election. — See 2 Cliurclis Now
Probate I>aw and Practice 1591.

Title to specific devises and legacies passes by will, possession
only in personal representative. — See Kerr's Cyc. C. C. § 1363
and note.

Vesting and divesting of estates — As to, generally, see 2
Church's New Probate I^aw and Practice 1606.

Same — As to expectancies, see 2 Church's New Probate l^w
and Practice 1607.

Same — Gifts inter vivos distinguished. — See 2 Churths New
Probate Law and Practice 1607.

Witnesses as devisees, when gift to void. — See Kcrrs Cyc.
C. C. §S 1282, 1283 and notes.

§ 1358. ESTATES CHARGE.VBLK. When a person dies
intestate, all his property, real and personal, without any
distinction between them, is chargeable with the payment of
his debts, except as otherwise provided in this code and the
Code of Civil Procedure.

IliMtory: Enacted March 21. 1872; amended March 30, 1871.
Code Amdts. 1873-4, p. 234.

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

66 C 432, 439. 6 P. 7 (cited): 67 C. 637, 639. S P. 497 (cit.d in
connection with C. C. P. § 1516): 150 C. 498, 505, 89 P. 98 (cited).

As to property passing by will, and vesting of interests, see
note §1357, ante: 2 Church's New Probate Law and Practice.
1580, 1588-1610.

"Debts" — What constitute.— See Kerr's Cyc. C. C. P. SS144S.
1467, 1494, 1497, ir>10, 1643 and notes.

§ 1359. OHDKH 01 IJKSOUT TO ESTATE FOH DEBTS.

The property of a testator, except as otherwise specially pro-
vided in this code and the Code of Civil Procedure, must be
resorted to for the payment of debts, in the following order:

1. The property which is expressly api)ropriated by the will
for the payment of the debts;

2. Property not disposed of by the will;

3. Property which is devised or bequeathed (n a residiiary

legatee ;

4. Property which is not si)ecilically dcxi^-fii .n luMiueatlied ;

and,

5. All other property ratably. Before any debts are paid,
Kerr's C. C. — 24 "737



§ 1360 CIVIL CODE. [Div.II,Pt.IV.

the expenses of the administration, and the allowance to
the family, must be paid or provided for.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 234-235.

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

66 C. 330,' 331, 5 P. 507 (referred to); 66 C. 432, 439, 440, 6 P.
7 (cited); 140 C. 282, 289, 73 P. 976, 978 ("devise" denotes a testa-
mentary disposition of land — "legacy" a like disposition of per-
sonalty) ; 142 C. 453, 456 (citing- § 1360 erroneously instead of
this section), 76 P. 41 (citing this section); 145 C. 508, 509, 510,
78 P. 1058 (referred to); 150 C. 498, 504, 505, 89 P. 98 (liability of
property of decedents for payment of debts and legacies) ; 1 C.
A. 524, 525, 527, 528, 82 P. 549 (construed with § 1360— order of
resort to property for payment of expenses of administration,
debts, or legacies).

As to property passing by will, and vesting of Interests, see
note § 1357, ante; 2 Church's New Probate Law and Practice,
1580, 1588-1610.

Abatement between legacies and devises. — See Kerr's Cyc.
C. C. § 1362 and note.

Direction in will for payment of debts. — See Kerr's Cyc. C. C.
§ 1377 and note.

Election of widow not to take under will. — See Kerr's Cyc.
C. C. § 1377 and note par. 5: also 11 Encyc. L. 81.

§ 1360. SAME. [FOR LEGACIES.] The property of a tes-
tator, except as otherwise specially provided in this code
and the Code of Civil Procedure, must be resorted to for the
payment of legacies, in the following order:

1. The property which is expressly appropriated by the
will for the payment of the legacies.

2. Property not disposed of by the will.

3. Property which is devised or bequeathed to a residuary
legatee.

4. Property which is specifically devised or bequeathed.

Htstory: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 235.

See Kerr's Cyc. C. C. for 20 pars, annotation.

66 C. 330, 331, 332, 5 P. 507, 508 (construed); 66 C. 432, 438,



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