§ 485. Legacies are distinguished and designated, ac- Nature and cording to their nature, as follows: designation of legacies. 1. Legacies of a particular thing, specified, and distin- Specific. guished from all others of the same kind belonging to the testator, are specific. If such legacy fails, resort cannot be had to the other property of the testator; tive. 2. Legacies are demonstrative when the particular fund Demonstraor personal property is pointed out from which they are 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. Annuities are bequests of certain specified sums Annuities. 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 remains Residuary. after all the bequests of the will are discharged; 5. All other legacies are general legacies. of § 486. When the decedent died intestate, the property, except such as is otherwise disposed of under section 509 of this Code, and such as is exempt under section' 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. § 487. In the case of a testator, the same 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 the will, or where the personal property which is not exempted is insufficient; 3. Real property which is not effectually devised; General. Lega cies, how charged with debts. Abatement. Specific devises and legacies. veyance will is pro four years. 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. § 488. In the application of the personal property to the payment of debts, the following order must be observed, unless a different intention is expressed in the will. 1. Residuary legacies; 2. General legacies; 3. Legacies given for a valuable consideration or the relinquishment of dower, or some right or interest; 4. Specific and demonstrative legacies. Legacies to husband, widow or kindred of any class are chargeable only after legacies to persons not related to the testator. § 489. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. § 490. 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. Heir's con- § 491. The title to real property, of a purchaser in good good unless faith, for a valuable consideration, derived from any perved within son claiming the same by succession, is not impaired by any devise made by the decedent from whom successionis claimed, unless the instrument containing such devise, is duly proved as a will, and recorded in the office of the surrogate having jurisdiction thereof, or unless written notice of such devise is filed with the clerk of the county where the real property 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 coutaining 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 expiration 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 representative, 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. § 492. Where specific legacies are for life only, the first Possession 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. § 493. In case of a bequest of the interest or income of Bequest of a certain sum or fund, the interest accrues from the testator's death. Satisfac § 494. A legacy or a gift in contemplation, fear or peril Satis of death may be satisfied. when due. § 495. Legacies are due and deliverable, at the expira- Legacies tion of one year after the testator's decease. Annuities commence at the testator's decease. § 496. Legacies bear interest from the time when they Interest. are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease. $497. The four preceding sections are in all cases to be Construc controlled by the testator's express intention. tion of these rules. Executor Power to appoint is invalid. Executor not to act $498. Where it appears, by the terms of the 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. § 499. An authority to an executor to appoint an executor is invalid. 500. No person has any power, as an executor, until till qualified he qualifies, except that before letters have been issued, he may pay funeral charges and take necessary measures for the preservation of the estate. Executor of an executor. From 2 R. S., 71, §§ 15, 16. 501. No executor of an executor, as such, has any power over the estate of the first testator. 2 R. S., 71, § 17; 448, § 11. Provisions as to revocations. Execution and con CHAPTER III. GENERAL PROVISIONS. SECTION 502. Provisions as to revocations. 503. Execution and construction of prior wills not affected. 504. "Wills" includes codicils. 505. The law of what place applies. 506. Liability of beneficiaries for testator's obligations. § 502. 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 article takes effect. 2 R. S., 68, § 76. § 503. The provisions of this title do not impair the struction of validity of the execution of any will made before this prior wills not affected. article takes effect, or affect the construction of any such will. "Will" includes codicils. 2 R. S., 68, § 87. 8504. The term "will," as used in this Code, includes all codicils as well as wills. 2 R. S., 68, § 77. what place § 505. Except as otherwise provided, the validity and The law of interpretation of wills is governed, when relating to real applies. property within this state, by the laws of this state; when relating to personal property, by the law of the testator's domicil. $506. 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, ch. 3. Liability ciaries for testator's obligations. of benef TITLE VI. SUCCESSION. NOTE-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 recommend 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. In case it is not thought best to adopt this change, the provisions of another chapter upon this subject, contained in Appendix A, at the end of this report, will be found to present the present distinction between real and personal property as between heir and executor, and the statutes of distribution and descent, with some modifications which those rules seem to require. SECTION 507. Succession defined. 508. Office of personal representatives. 509. Certain personal and other property not assets but retained |