If no executors are named in the will, one or more may be appointed to carry it into effect. [--3532.]

[Sidenote: Posthumous children.]

Posthumous children unprovided for by the father's will, shall inherit the same interest as though no will had been made. [--3534.]

[Sidenote: Heirs of a devisee.]

If a devisee die before the testator, his heirs shall inherit the amount so devised to him unless from the terms of the will a contrary intent is manifest. [--3537.] The word heir in this section does not include the widow of the testator, and she cannot inherit from a child to whom property has been devised by his father, but who has died before the father.

[Sidenote: Married women.]

A married woman may act as executor independent of her husband. [--3545.]

[Sidenote: Minors.]

If a minor under eighteen years of age is appointed executor, there is a temporary vacancy as to him until he reaches that age. [--3546.]

[Sidenote: Administration. Who ent.i.tled. Order.]

In other cases where an executor is not appointed by will, administration shall be granted:

1. To the wife of the deceased;

2. To his next of kin;

3. To his creditors;

4. To any other person whom the court may select. [--3555.]

[Sidenote: Cla.s.ses united.]

Individuals belonging to the same or different cla.s.ses, may be united as administrators whenever such course is deemed expedient. [--3556.]

[Sidenote: Time allowed.]

To each of the above cla.s.ses in succession a period of twenty days, commencing with the burial of the deceased, is allowed within which to apply for administration upon the estate. [--3557.]

CHAPTER VIII.

SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY.

[Sidenote: Exempt personal property.]

When the deceased leaves a widow, all the personal property which, in his hands as head of the family, would be exempt from execution, after being inventoried and appraised, shall be set apart to her as her property in her own right, and be exempt in her hands as in the hands of the decedent. [--3575.] This provision secures an advantage to the wife which does not exist in favor of the husband. Upon the death of the wife all personal property belonging to her, whether exempt or not, pa.s.ses to her administrator to be distributed by him among her heirs. A widow is not ent.i.tled to pension money, although the same was exempt in the hands of her husband, the exemption being for the benefit of the pensioner as such, and not as head of a family.

[Sidenote: Life insurance.]

The avails of any life insurance or any other sum of money made payable by any mutual aid or benevolent society upon the death of a member of such society, are not subject to the debts of the deceased, except by special contract or arrangement, but shall in other respects, be disposed of like other property left by the deceased. [--3576.] A policy of insurance on the life of an individual, in the absence of an agreement or a.s.signment to the contrary shall inure to the separate use of the husband or wife and children of said individual, independently of his or her creditors. And the avails of all policies of insurance on the life of an individual payable to his surviving widow, shall be exempt from liabilities for all debts of such beneficiary contracted prior to the death of the deceased, provided that in any case the total exemption for the benefit of any one person shall not exceed the sum of five thousand dollars. [--1756, Sup.] The contract between the a.s.sured and the insurance company, cannot be changed in any particular without the consent of the company, and a testator cannot, by will, change the beneficiary named in the policy unless it is expressly so provided in the contract. Where a policy is made payable to the a.s.sured or his legal representatives, the proceeds of the policy will pa.s.s to the administrator of his estate, and will be paid to the wife and children, but no part can be distributed to other heirs. If the a.s.sured leaves a wife or husband and no children, the entire proceeds of the policy will go to the wife or husband, and after they have pa.s.sed into the hands of the beneficiary, they will not be subject to execution for the payment of his or her debts, provided they do not exceed the sum of five thousand dollars.

A wife is not her husband's "legal heir" and the entire proceeds of a policy or certificate of insurance made payable to the a.s.sured or his "legal heirs" will go to the children of the deceased.

[Sidenote: Allowance to widow and children.]

The court shall if necessary, set off to the widow and children under fifteen years of age, of the decedent, or to either, sufficient of the property of such kind as it shall deem appropriate to support them for twelve months from the time of his death. [--3579.] The allowance to the widow takes priority over all other claims against the estate, and should be paid immediately. If the widow and children have no other means of support the allowance may be made though the estate is insolvent. It is no part of the dower interest, but is a separate and distinct right which may be made in addition to dower, or even in cases where by contract made before marriage, all rights to dower and inheritance have been relinquished. Real estate may be sold if necessary, where the personal property is not sufficient to provide for the allowance to the widow and children, and the widow may claim the allowance although there are no children, and she may have property of her own, if the income of such property is not sufficient for her support.

[Sidenote: Expenses of funeral.]

As soon as the executors are possessed of sufficient means, over and above the expenses of administration, they shall pay off the charges of the last sickness and funeral of deceased. [--3622.]

[Sidenote: Allowance.]

They shall, in the next place, pay any allowance which may be made by the court for the maintenance of the widow and minor children. [--3623.]

After the funeral expenses and the allowance to the widow and children have been paid, the claims against the estate will be discharged in the order provided by law, after which, the balance of the property, devised by will after all expenses of administration have been paid, will be distributed to the different legatees.

[Sidenote: Descent and distribution. Personal property.]

The personal property of the deceased, not necessary for the payment of debts, nor otherwise disposed of as hereinbefore provided, shall be distributed to the same persons and in the same proportions as though it were real estate. [--3640.] A husband cannot, by will, deprive his wife of her share in his personal estate, after his death, but he may dispose of it during his lifetime in any manner he may choose.

[Sidenote: Payment.]

The distributive shares shall be paid over as fast as the executors can properly do so. [--3641.]

[Sidenote: In kind.]

The property itself shall be distributed in kind whenever that can be done satisfactorily and equitably. In other cases the court may direct the property to be sold, and the proceeds to be distributed. [--3641.]

[Sidenote: Partial distribution.]

When the circ.u.mstances of the family require it, the court, in addition to what is hereinbefore set apart for their use, may direct a partial distribution of the money or effects on hand. [--3643.]

[Sidenote: Share of husband or wife.]

[Sidenote: Dower and curtesy.]

One-third in value of all the legal or equitable estates in real property, possessed by the husband at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the wife has made no relinquishment of her right, shall be set apart as her property in fee-simple, if she survive him. The same share of the real estate of a deceased wife shall be set apart to the surviving husband. All provisions made in this chapter in regard to the widow of a deceased husband, shall be applicable to the surviving husband of a deceased wife. The estates of dower and curtesy are hereby abolished. [--3644] While the estate of dower is abolished by statute, and a wife takes her distributive share of the property in its stead, yet this distributive share is still commonly designated by the term "dower." The dower interest of the wife is not subject to the debts of her husband. A wife may release her right of dower in real property by joining in a joint deed with her husband, although the deed may contain no express relinquishment of dower. Contracts between husband and wife, though for a legal and valuable consideration, or with a view to separation are invalid, the interest of either during the lifetime of both, being merely contingent and inchoate, but an agreement previous to marriage by which each waives all right in the other's estate, or by which the wife relinquishes her right of dower, is valid. A woman can claim no dower in her husband's estate, after his death, if she has procured a divorce from him while living and the divorce is in force at the time of his death. Where the provisions of a will gives the wife a certain interest in the estate, she may always elect whether she will take her dower interest or under the will.

[Sidenote: Homestead.]

The distributive share of the widow shall be so set off as to include the ordinary dwelling-house given by law to the homestead, or so much thereof as will be equal to the share allotted to her by the last section, unless she prefers a different arrangement. But no different arrangement shall be permitted where it would have the effect of prejudicing the rights of creditors. [--3645.] If the distributive share of either husband or wife is set out to the survivor from the homestead, it will still retain its homestead character, and will be exempt from execution for the payment of debts.

[Sidenote: Widow of alien.]

The widow of a non-resident alien shall be ent.i.tled to the same rights in the property of her husband, as a resident, except as against a purchaser from the decedent. [--3646.] The term "non-resident alien" does not refer to one who resides out of the United States, but to non-residents of the state, who may reside in other states; the purpose of the statute being to encourage the purchase of lands within the state from non-resident owners, and to protect purchasers of such real estate from claims for dower or distributive share therein.