Devise or bequest of all real or all personal property or both. Residuary clause. Id. "Heirs," "relatives," Van Wert v. Benedict, 1 Bradf., 123; Amory v. Meredith, 7 Allen, 397. See a similar provision, 1 Vict., c. 26, 27, as regards a general and beneficial power. S 593. A devise or bequest of all the testator's 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. 12 R. S., 57, § 5. McNaughton v. McNaughton, 41 Barb., 50. $594. A devise of the residue of the testator's estate, property, or 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. It has been doubted (Van Cortlandt v. Kip, 1 Hill, 596; 7 id, 352; see Prescott v. Prescott, 7 Metc., 141, 146) whether this is the effect of a residuary devise, except where the beneficial taker under the prior devise is the same person as the residuary devisee (see Tucker v. Tucker, 5 N. Y., 421), where the prior devise has been revoked by the testator (Kip v. Van Cortlandt, 7 Hill, 346), or where the prior devise is only a charge upon, and not an exception from the residuary devise (Cook v. Stationers' Co., 3 Myl. & K., 262). $595. A bequest of the residue of the testator's estate, property or 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. or $ 596. A testamentary disposition to "heirs," "relations," "nearest relations," "representatives," "legal representatives" or "personal representatives," or "family," "issue," "descendants," "nearest" "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* If the provisions of Appendix A to the draft of this Code are adopted, the following words should be substituted for the words following the asterisk: If real, in those who would be entitled to succeed to the property of such person according to the chapter on Succession to Real Property; if personal, then in those who would be entitled according to the chapter on Succession to Personal Property." in those who would be entitled to succeed to the property of such person, according to sections 642 and 643 of this Code. $597. 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 qualification of an estate given to the ancestor of such person. S 598. 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 possession. 1Adams v. Beekman, 1 Paige, 631; Ive v. King, 16 Beav., Young v. Robertson, 4 Macq., 319, 330; Young v. It makes no difference that there is a postponement without any preceding life interest (Hodgson v. Mickle- $599. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to à future period, it includes also all persons coming within the description, before the time to which possession is postponed." Tucker v. Bishop, 16 N. Y., 402; Campbell v. Rawdon, 18 N. Y., 415. Persons who die before the testa- Tucker v. Bishop, 16 N. Y., 402; Johnson v. Valentine, $600. When a will directs' the conversion of real property into money, such property and all its pro When child born after testator's death, takes under will. Mistakes and omissions. When devises and bequests vest. ceeds must be deemed personal property,' from the time of the testator's death.3 Forsyth v. Rathbone, 34 Barb., 405; Fowler v. Depau, 26 Barb., 239; Harris v. Clark, 7 N. Y., 260; Phelps v. Pond, 23 N. Y., 76. 2 Meakings v. Cromwell, 5 N. Y., 136; King v. Woodhull, 3 Edw., 79; Bramhall v. Ferris, 14 N. Y., 46; Johnson v. Bennett, 39 Barb., 252. Kane v. Gott, 24 Wend., 669. S601. 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 possession, takes, if answering to the description of the class. Rawlins v. Rawlins, 2 Cox, 425; Trower v. Butts, 1 Sim. & Stu., 181; Jenkins v. Freyer, 4 Paige, 53. $ 602. When, applying a will, it is found that there is an imperfect description,' or that no person' or property3 exactly answers the description, mistakes' and omissions must be corrected, if the error appears from the context of the will or from competent extrinsic evidence." 'Fleming v. Fleming, 8 Jur. (N. S.), 1042. Conolly v. Pardon, 1 Paige, 291; Smith v. Smith, 4 id., 'Hart v. Tulk, 2 De Gex, M. & G., 300. Stanley v. Stanley, 2 Johns. & Hem., 513; see Blundell v. Gladstone, 1 Phillips, 279. The testator's declarations are generally inadmissible (Doe v. Hiscocks, 5 Mees. & W., 563. To the contrary, Ex parte Hornby, 2 Bradf., 420). Otherwise if the words are equally descriptive of several persons (Doe v. Allen, 12 Ad. & El., 451; Fleming v. Fleming, 8 Jur. [N. S.], 1042) or subjects of ownership (See Douglass v. Fellows, 1 Kay, 114, 120). $603. Testamentary dispositions, including devises1 and bequests to a person on attaining majority, are presumed to vest at the testator's death. 1 Post v. Hover, 30 Barb., 312, 319. 2 Dupre v. Thompson, 8 Barb., 537. When can not be S604. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the divested. precise contingency prescribed by the testator for that purpose. Williams v. Jones, 1 Russ., 517; Humberston v. Stanton, $ 605. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place. Savage v. Burnham, 17 N. Y., 575. S606. The death of a devisee' or legatee of a limited interest, before the testator's death, does not defeat the interests of persons in remainder, who survive the testator. 'Downing. Marshall, 28 N. Y., 370; 23 How. Pr., 7; 2 S607. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. precedent, $ 608. A condition precedent in a will is one which Condition is required to be fulfilled before a particular disposition takes effect. what. Effect of condition S609. Where a testamentary disposition is made upon a condition precedent, nothing vests until the precedent. condition is fulfilled; except where such fulfillment is impossible, in which case the disposition vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execution of the will. precedent, $610. A condition precedent in a will is to be Conditions deemed performed when the testator's intention has when been substantially, though not literally, complied performed. with. deemed Condition subsequent, what. Devisees and legatees take as ten S611. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event. S612. A devise' or legacy' given to more than one ants in com- person vests in them as owners in common. mon. Advance ments when ademptions. 1 R. S., 727, § 44. To the contrary, see Putnam v. Putnam, 4 Bradf., 308. S613. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing. This provision is new. CHAPTER III. GENERAL PROVISIONS. SECTION 614. Nature and designations of legacies. 1. Specific. 2. Demonstrative. 3. Annuities. 4. Residuary. 5. General. 615. Order of sale in case of an intestate. 616. Order of sale in case of a testator. 617, 618. Legacies, how charged with debts. 619. Abatement. 620. Specific devises and legacies. 621. Heir's conveyance good, unless will is proved within four years. 622. Possession of legatees. 623. Bequest of interest. 624. Satisfaction. 625. Legacies, when due. 626. Interest. 627. Construction of these rules. 628. Executor according to the tenor. 629. Power to appoint is invalid. 630. Executor not to act till qualified. 631. Executor of an executor. 632. Provisions as to revocations. 633. Execution and construction of prior wills not affected. 634. "Wills" includes codicils. 635. The law of what place applies. 636. Liability of beneficiaries for testator's obligations. |