Will to pass rights acquired after the making thereof.

1312. 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, if it 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.

1313 added

NOTE.-Stats. 1850, p. 179, Sec. 22; 1865-6, p. 381, Sec. 1. The preceding chapter is taken from our own statutes on wills. Reference is here made generally to the Code of Civil Procedure on the subject of Wills and the Probate Practice, as also to Title VII of this Div. on Succession, and notes.

CHAPTER II.

INTERPRETATION OF WILLS, AND EFFECT OF VARIOUS PRO-
VISIONS.

SECTION 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 clause.

1333. Same.

1334. "Heirs," "relatives," "issue," "descendants," etc. 1335. Words of donation and of limitation.

SECTION 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. A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.

NOTE.-Kidwell vs. Brummagim, 32 Cal., p. 436. INTENTION OF TESTATOR.-Brown vs. Lyon, 6 N. Y., p. 420; Chrystie vs. Phyfe, 19 N. Y., p. 348. Must have effect as far as possible.-Kane vs. Gott, 24 Wend., p. 665; Savage vs. Burnham, 17 N. Y., p. 577; Doe vs. Gallini, 5 B. & Ad., p. 621; Williams vs. McDougall, 39 Cal., p. 80; Estate of Wood, 36 Cal., p. 75. Red. on L. of Wills, on pp. 432, 433, and notes, says: "All the books which treat of the construction of wills constantly repeat the formula, that the intention of the testator is the prevailing consideration in applying all the rules of construction. This will be found repeated an infinite number of times in the American reports." The English Courts have gone to great length in giving force to any form of request in a will, and making it of binding force on the executor. Similar alacrity in the Courts is manifested to construe informal documents and entries in books into the binding force of wills.See Red. L. of Wills, pp. 175-6. The tendency of the Courts to extend to the intentions of decedents, however informally expressed, the validity of wills, is an argument in favor of the adoption of Sec. 1277, ante.

1318. In case of uncertainty arising upon the face of a will, as to the application of any of its pro

Testator's

intention to

be carried

out.

Intention

to be

from the

will.

visions, the testator's intention is to be ascertained

ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.

Rules of interpretation.

NOTE. "There is none of more universal application, both here and in England, than (the rule) that the plain and unambiguous words of the will must prevail, and are not controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances, or condition, either of the testator, his property, or family."-Red. Law of Wills, p. 430; Bunner vs. Storm, 1 Sandf. Ch., p. 357; Mann vs. Mann, 14 Johns., p. 1; Parsons vs. Winslow, 6 Mass., p. 175; Dawes vs. Swain, 4 id., p. 208. Particular construction of words at variance with their more natural import, may be strengthened by such extraneous circumstances.-Bullock vs. Evans, 9 H. of L. Cas., p. 24; Maddison vs. Chapman, 5 Jur., (N. S.,) p. 277.

1319. 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.

NOTE. See the two preceding sections, and notes containing references to numerous authorities and decisions of recognized weight with all our Courts. It would be an inexcusable fault of the law, and of law makers, if, for the want of proper rules of interpretation, the last wish and desire of a decedent, who has gone to the trouble of placing in solemn writing his will, the property which he had expended a lifetime in accumulating, it may be, for a particular purpose the object and aim of his material existence-should be perverted and devoted to objects and purposes never intended. It would be a still greater fault not to give force and efficacy to language employed in a will about which no two men could be found to disagree with regard to the intention of the testator. This result, in the past, has unfortunately happened. It is hoped, however, that these rules of interpretation of wills will prevent the repetition of such cases as that commented on in Note 5, p. 424, Red. on Law of Wills, as follows: "We often remember the remark of a Judge, sitting at nisi prius, when the acknowledgment of a deed of land was in all respects in due form, and had been duly registered and

The

acquiesced in for fifty years, except that the word
‘acknowledged' was unfortunately omitted.
Judge very coolly remarked that this was a very
important word. Truly; and so is the word 'prom-
ise,' in a promissory note, but its omission has been
supplied by intendment and construction; and so has a
note been held good when written, I promise not to
pay,' etc.; so, also, the phrase, 'with issue' is often
construed without issue.' And there are numerous
very recent decisions of the English Courts where it
has been held that the omission of any word in a will
may be supplied by intendment where there is no doubt
in regard to the word intended to be used."-Towns vs.
Wentworth, 11 Moore P. C. C., p. 526. But the in-
tendment must be clear-beyond all reasonable doubt-
so that no two persons could be expected to differ in
regard to the word intended.-Thompson vs. White-
lock, 5 Jur. (N. S.), p. 991; Parish vs. Stone, 14 Pick.,
p. 198; Loring vs. Sumner, 23 id., p. 98; Wilbur vs.
Smith, 5 Allen, p. 194; Longstaff vs. Rennison, 1
Drewry, p. 28. Redfield, in his Law of Wills, p. 425,

holds this language: "It is true * that the gen-
eral rules for the construction of wills, as drawn up by
Mr. Jarman, have, in themselves, acquired, in some
degree, the weight of authority. But in common with
all general rules, they will be found to call for consid-
erable discretion in their application to particular
cases." The rules referred to are to be found in Jar-
man's Eng. Ed. of 1861, Vol. 2., p. 762, et seq.; also,
in Red. L. of Wills, p. 425, Note 1. It is the purpose
of the Code, in this Chapter, to render as certain as
possible the rules of construction and interpretation of
wills. Bruck vs. Tucker, 32 Cal., p. 425; Kidwell vs.
Brummagim, 32 id., p. 436; Estate of Garraud, 35 id.,
p. 336; Carpentier vs. Gardner, 29 Cal., p. 160; Larco
vs. Cassanueva, 30 Cal., p. 560. Same instrument may
operate as a conveyance and as a will.-Adams vs.
Lansing, 17 Cal., p. 629. Will as a conveyance.-
Castro vs. Castro, 6 Cal., p. 158.

instru

1320. Several testamentary instruments, executed Several by the same testator, are to be taken and construed ments are together as one instrument.

NOTE.-Howland vs. Union Theo. Sem., 5 N. Y.,
pp. 193, 214; Haven vs. Haven, 1 Redf. Surr., p. 374; .
Jauncy vs. Atty. Genl., 3 Giff., p. 308; Stone vs. Evans,
2 Atk., p. 86.

to be taken together.

Harmoniz

ing various

parts.

In what

case devise not affected.

1321. 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.

NOTE.-All parts construed relative to each other (Arcularius vs. Geisenhainer, 3 Bradf., p. 64; affirmed, 25 Barb., p. 403; Egerton vs. Conklin, 25 Wendall, pp. 224-238; Covenhoven vs. Shuler, 2 Paige, p. 130; Ford vs. Ford, 6 Hare, p. 492; Stewart vs. Jones, 3 De Gex. and J., p. 532), so as to form one consistent whole, if possible (Carter vs. Hunt, 40 Barb., p. 391; Morrall vs. Sutton, 1 Phillips, p. 533; Mutter's Estate, 38 Penn. St., p. 314; Jennings vs. Newman, 10 Sim., p. 223); but when several parts, whether in the same sentence or in different sentences (Morrall vs. Sutton, 1 Phillips, pp. 537-547), are absolutely (Barclay vs. Maskelyne, H. R. V. Johns., p. 131; Sweet vs. Chase, 2 N. Y., p. 79; Covenhoven vs. Shuler, 2 Paige, p. 123) irreconcilable, the latter must prevail.-See Trustees of Theolog. Seminary vs. Kellogg, 16 N. Y., p. 88; Norris vs. Beyea, 13 N. Y., p. 284; Campbell vs. Rawdon, 18 N. Y., p. 414; Griffen vs. Ford, 1 Bosw., p. 123; Bradstreet vs. Clarke, 12 Wend., p. 602.

1322. A clear and distinct devise or bequest cannot 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 reference to its contents in another part of the will.

NOTE.-Devise not affected by reasons assigned therefor.-Cole vs. Wade, 16 Ves., p. 46; see Thompson vs. Whitlock, 5 Jur. (N. S.), p. 991. Nor by other words not equally clear and distinct.-Thornhill vs. Hall, 2 Cl. and F., p. 22; Barclay vs. Maskelyne, H. R. V. Johns., p. 126. This rule applies equally to prior (Greenwood vs. Sutcliffe, 14 C. B., p. 226) and to subsequent words.-Arcularius vs. Geisenhainer, 3 Bradf., p. 75; affirmed, 25 Barb., p. 403; Kiven vs. Oldfield, 4 De Gex and J., p. 30; Borrell vs. Haigh, 2 Jur., p. 229. Nor by inference or argument from other parts.-Campbell vs. Harding, 2 Russ. and M., Jennings vs. Newman, 10 Sim., p. 223. Nor by inaccu rate recital or reference.-Hillersdon vs. Lowe, 2 Hare,

409;