Revocation of one duplicate. Revocation by subse quent will, Revocation of subse quent will does not revive the first. Revocation by marriage issue. § 469. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. § 470. A prior will is not revoked by a subsequent will unless the latter contains: 1. An express revocation; or 2. Provisions wholly inconsistent with the terms of the former; but if its provisions are not wholly inconsistent the former remains effectual so far as consistent with the provisions of the subsequent will. § 471. If after making a will the testator duly makes and executes a subsequent will, the destruction, canceling or revocation of the latter does not revive the former, unless it appears by the terms of such revocation that it was his intention to revive the prior will, or unless after such destruction, canceling or revocation he duly republishes the prior will. 2 R. S., 65, § 53. § 472. If a man having made a will marries and has and birth of issue of such marriage, born either in his lifetime or after his death, and the wife or issue survives him, the will is to be deemed revoked, unless provision has been made for such issue by some settlement, or unless such issue are provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of such revocation can be received. Revocation of woman's 2 R. S., 64, § 43. § 473. A will executed by an unmarried woman is will by mar- revoked by her subsequent marriage. riage. Contract of sale not a revocation. 2 R. S., 64, § 44. § 474. An obligation made by a testator, for value, to transfer property disposed of by a previously made will, is not a revocation of such disposal; but the property passes by the will, subject to the same remedies on the testator's obligation, for a specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors, if the same had passed by succession. 2 R. S., 64, § 45. § 475. A charge or incumbrance upon any real or personal property, for the purpose of securing the payment of money or the performance of any obligation, is not a revocation of any will relating to the same property previously executed; but the devises and bequests of the will take effect subject thereto. 2 R. S., 64, § 46. § 476. A conveyance, settlement, deed, or other act of a testator, by which his property in a thing previously devised or bequeathed by him, is altered but not wholly divested, is not a revocation; but the devise or bequest passes the property which would otherwise devolve by succession. revocation. But if the instrument by which such alteration When it is a is made, expresses an intent that it shall be a revocation, or if it contains provisions wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument operates as a revocation thereof, unless such inconsistent provisions depend on a condition or contingency, by reason of which they do not take effect. 2 R. S., 65, §§ 47, 48 477. The revocation of a will revokes all its codicils. Revocation of codicils. child, un provided 8478. Whenever a testator has a child born after the After-born making of his will, either in his lifetime or after his death, Porto and dies leaving such child unprovided for by any settle- ceed. ment, and neither provided for nor in any way mentioned 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. 2 R. S., 65, § 49. § 479. Whenever any real or personal property is devised or bequeathed to a descendant or brother or sister of the testator, and such legatee or devisee dies during the lifetime of the testator, leaving a descendant who survives the testator, such devise or legacy does not lapse, but the thing devised or bequeathed vests in the surviving descendants of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate. 2 R. S., 66, § 52. Devises and certain bequests, in cases not to lapse. Witness to will cannot will. § 480. If a person is a subscribing witness to the exetake under cution of a will wherein any beneficial devise, legacy, interest or power of appointment of any real or personal property, is made to such witness, and the will cannot be proved without his testimony, the devise, legacy, interest or power is void so far only as concerns such witness, or any claiming under him, and the witness is competent to prove the execution of the will. When witness may succeed. Creditor a competent witness. Modified from 2 R. S., 65, § 50; omitting the disqualification of husband or wife of witness. § 481. If such witness, would have been entitled to any share of the testator's estate in case the will was not established, then he succeeds to the same portion of the testator's estate, that he would have succeeded to if the testator had died intestate, not exceeding the value of the devise or bequest to him in the will. 2 R. S., 65, § 51. § 482. If by a will, real property is charged with any debt, and the creditor whose debt is so charged, attests the execution thereof, such creditor, notwithstanding the charge, is a competent witness, to prove the execution of the will. 1 R. S., 57, § 6. CHAPTER II. INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS SECTION 483. Testator's intention to be carried out. 484. Rules of interpretation. 1. Several instruments are to be taken together. 2. Harmonizing various parts. 3. When a devise or bequest is not controlled by subsequent words. 4. Words capable of two senses. 5. Effect of technical words. 6. Technical words not necessary. 7. Certain words not necessary to pass a fee. 8. Power to devise, how executed by terms of will. 9. Devise or bequest of all real or all personal property, or both. 10 and 11. Residuary clause. 12. "Heirs," "relatives," "issue," "descendants," &c. 13. Words of purchase and of limitation. 14. Time of death. 15. Time of conversion. 16. Devise or bequest to a class. 17. Time of birth of child. 18. Mistakes and omissions corrected. 19. When devises and bequests vest. 21. Death of devisee or legatee. 22. Interests in remainder are not affected. 24. Conditions precedent. 25. Conditions subsequent. 26. Legatees take as tenants in common. SECTION 485. Nature and designations of legacies. 2. Demonstrative. 3. Annuities. 4. Residuary 5. General. 486. Order of sale in case of an intestate. 487. Order of sale in case of a testator. 488. Legacies, how charged with debts. 489. Abatement. 490. Specific devises and legacies. 491. Heir's conveyance good, unless will is proved within four years. 492. Possession of legatees. 493. Bequest of interest. 494. Satisfaction. 495. Legacies, when due. 496. Interest. 497. Construction of these rules. 498. Executor according to the tenor. 499. Power to appoint is invalid. 500. Executor not to act till qualified. § 483. A will is to be construed according to the intention of the testator. Where the intention cannot operate to its full extent, it must have effect as far as possible. 484. In interpreting wills, according to the law of this state, the following rules are to be observed unless an intention to the contrary clearly appears: 1. Several testamentary instruments are to be taken and Several inconstrued together as one instrument; struments to be taken together. 2. All the parts of a will are to be construed in relation Harmonito each other, and so as if possible to form one consistent ous parts. zing vari When a devise or be controlled by subse quent words. whole; but where several parts are absolutely irreconcilable, the latter must prevail; 3. An express and positive devise or bequest cannot be quest is not controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will; and such a devise or bequest is not af fected by a subsequent inaccurate recital of or reference to its contents; though recourse may be had to such reference to assist the construction in case of ambiguity or doubt; Words capable of 4. Words, in general, are to be taken in their ordinary two senses. and grammatical sense, unless a clear intention to use them in another can be collected, and that other can be ascertained; and they are in all cases to receive a construction which will give to every expression some effect, rather than ɔne which will render any of the expressions inoperative; and of two modes of construction that is to be preferred which will prevent a total intestacy; Power to devise, how 5. Where a testator uses technical words they are to be taken in their legal sense, unless the context clearly indicates a contrary intention; 6. Technical words are not necessary to give effect to any species of disposition in a will; 7. The term "heirs" or other words of inheritance are not requisite to create or convey an estate in fee; and a devise of real property passes all the estate or interest of the testator, unless otherwise limited; 1 R. S., 748, § 1. 8. Real property, embraced in a power to devise, passes executed by by a will purporting to devise all the real property of the terms of will. Devise or bequest of all real or all personal testator; 1 R. S., 737, § 126. 9. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms property or denoting his intent to devise all his real or personal property, passes all the real or personal property which he was entitled to devise or bequeath at the time of his death; Residuary clause. 10. A devise of the residue of the testator's estate, pro perty, or real property, passes all the real property which |