The Civil Code of the State of California (1872)



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(This Act. how cited.)  21. This Act, whenever cited, enumerated, referred to, or amended, may be designated simply as “The Civil Code,” adding, when necessary, the number of the section. (What constitutes marriage.)  55. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone wall not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations. (Minors capable of contracting marriage.)  56. Any unmarried male of the age of eighteen years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage. (Marriage, how manifested and proved.)  57. Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases. (Certain marriages voidable.)  58. If either party to a marriage is incapable of consent, for want of age or understanding; or, from physical causes, of entering into the marriage state; or if such consent is obtained by fraud or force, the marriage is voidable. (Incompetency of parties to.)  59. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. (Of whites and negroes or mulattoes, void.)  60. All marriages of white persons with negroes or mulattoes are illegal and void. (Polygamy forbidden.)  61. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: 1. The former marriage had been annulled or dissolved; or, 2. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage; in which case the subsequent marriage is void only from the time its nullity is adjudged by a competent tribunal. (Marriages contracted without the State.)  63. All marriages contracted without this State, which would be valid by the laws of the country in which the same were contracted, are valid in this State. (Marriage, how solemnized.)  68. Marriage must be licensed, solemnized, authenticated, and recorded as provided in this Article; but non-compliance with its provisions does not invalidate any lawful marriage. (Marriage license.)  69. All persons about to be joined in marriage must first obtain a license therefor from the Clerk of the County Court of the county in which the marriage is to be celebrated, showing: 1. The identity of the parties; 2. Their real and full names and places of residence; 3. That they are of sufficient age to be capable of contracting marriage; 4. If the male is under the age of twenty-one, or the female under the age of eighteen years, the consent of the father, mother, or guardian, if any such, is given; or that such non-aged person has been previously, but is not at the time, married. For the purpose of ascertaining these facts, the Clerk is authorized to examine parties and witnesses on oath, and receive and read affidavits. He must state such facts in the license. (By whom solemnized.)  70. Marriage may be solemnized by either a Justice of the Supreme Court, District or County Judge, Justice of the Peace, Mayor, priest, or minister of the gospel of any denomination. (No particular from of solemnization.)  71. No particular form for the ceremony of marriage is required, but the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife. (Substantial requisites.)  72. The person solemnizing a marriage must first require the presentation of the marriage license, and satisfy himself that it substantially conforms to Section 69, and that the facts set forth in it are true. For this purpose he may rely upon the license or may administer oaths and examine the parties and witnesses in like manner as the County Clerk does before issuing the license. (Certificate of marriage.)  73. The person solemnizing a marriage must make, sign, and indorse upon or attach to the license a certificate, showing: 1. That he believes the facts stated to be true, and that upon due inquiry there appears to be no legal impediment to the marriage; 2. The names and places of residence of one or more witnesses to the ceremony; 3. The fact, time, and place of solemnization. (Certificate to parties and Recorder.)  74. He must, at the request of, and for either party, make a certified copy of the license and certificate, and file the originals with the County Recorder within thirty days after the marriage. (Declaration of marriage, how made.)  75. Persons married without the solemnization provided for in Section 70 must jointly make a declaration of marriage, substantially showing: 1. The names, ages, and residence of the parties; 2. The fact of marriage; 3. The time of marriage; 4. That the marriage has not been solemnized. (Declaration to contain what.)  76. If no record of the solemnization of a marriage is known to exist, the parties may join in a declaration of such marriage, substantially showing: 1. The names, age, and residence of the parties; 2. The fact of marriage; 3. That no record of such marriage is known to exist. (Cases where marriage may be annulled.)  82. A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party seeking to have the marriage annulled was under the age of legal consent; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife; 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force; 3. That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife; 4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife; 5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable. (Same.)  83. An action to obtain a decree of nullity of marriage, for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows: 1. For causes mentioned in Subdivision 1: by either party to the marriage, or by a guardian or relative, within four years after arriving at the age of consent; 2. For causes mentioned in Subdivision 2: by either party during the life of the other, or by such former husband or wife; 3. For causes mentioned in Subdivision 3: by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in Subdivision 4: by the party injured, within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in Subdivision 5: by the injured party, within four years after the marriage; 6. For causes mentioned in Subdivision 6: by the injured party, within four years after the marriage. (Children of annulled marriage.)  84. Where a marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, children begotten before the judgment are legitimate, and succeed to the estate of both parents. (Effect of judgment of nullity.)  86. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them. (Mutual obligations of husband and wife.)  155. Husband and wife contract towards each other obligations of mutual respect, fidelity, and support. (Rights of husband, as head of family.)  156. The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto. (In other respects their interests separate.)  157. Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other’s dwelling. (Husband and wife may make contracts.)  158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the genera] rules which control the actions of persons occupying confidential relations with each other, as defined by the Title on Trusts. (How far may impair their legal obligations.)  159. A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property, and except that they may agree to an immediate separation, and may make provision for the support of either of them and of their children during such separation. (Consideration for agreement separation.)  160. The mutual consent of the parties is a sufficient consideration for such an agreement as is mentioned in the last section. (May be joint tenants, etc.)  161. A husband and wife may hold property as joint tenants, tenants in common, or as community property. (Separate property of the wife.)  162. All property of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property. The wife may, without the consent of her husband, convey her separate property. (Courtesy and dower not allowed.)  173. No estate is allowed the husband as tenant by courtesy upon the death of his wife, nor is any estate in dower allotted to the wife upon the death of her husband. (Support of wife.)  174. If the husband neglects to make adequate provision for the support of his wife, any other person may, in good faith, supply her with articles necessary for her support, and recover the reasonable value thereof from the husband. (Husband not liable when abandoned by wife.)  175. A husband abandoned by his wife is not liable for her support until she offers to return, unless she was justified, by his misconduct, in abandoning him. (When wife must support husband.)  176. The wife must support the husband out of her separate property when he has no separate property and they no community property, and he from infirmity is not able or competent to support himself. (Rights of husband governed by what.)  177. The property rights of husband and wife are governed by this Chapter, unless there is a marriage settlement containing stipulations contrary thereto. (Marriage settlement contracts, how executed.)  178. All contracts for marriage settlements must be in writing, and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved. (Minors may make marriage settlements.)  181. A minor capable of contracting marriage may make a valid marriage settlement. (Child may be adopted.)  221. Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this Chapter. (Who may adopt.)  222. The person adopting a child must be at least fifteen years older than the person adopted, and must have been married, and if a woman, must be a widow, or be lawfully divorced from her husband without her fault. (Consent of wife necessary.)  223. A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife. (Consent of child's parents.)  224. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery, or of cruelty, and for either cause divorced, or adjudged to be a habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect. (Consent of child.)  225. The consent of a child, if over the age of twelve years, is necessary to its adoption. (Proceedings on adoption.)  226. The person adopting a child, and the child adopted, and the other persons whose consent is necessary, must appear before the County Judge of the county where the person adopting resides, and the necessary consent must thereupon be signed, and an agreement be executed by the person adopting, to the effect that the child shall be adopted, and treated in all respects as his own lawful child should be treated. (Judge’s order.)  227. The Judge must examine all persons appearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. (Effect of adoption.)  228. A child, when adopted, takes the name of the person adopting, and the two thenceforth sustain towards each other the legal relation of parent and child, and have all the right and are subject to all the duties of that relation. (Effect on former relations of child.)  229. The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. (Adoption of illegitimate child.)  230. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this Chapter do not apply to such an adoption. (Kinds of guardians.)  238. Guardians are either: 1. General; or, 2. Special' (General guardian, what.)  239. A general guardian is a guardian of the person or of all the property of the ward within this State, or of both. (Special guardian, what.)  240. Every other is a special guardian. (Appointment by parent.)  241. A guardian of the person of a child born, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing: 1. If the child is legitimate, by the father, with the written consent of the mother; or by either parent, if the other is dead or incapable of consent. 2. If the child is illegitimate, by the mother. (No person guardian of estate without appointment.)  242. No person, whether a parent or otherwise, has any power as guardian of property, except by appointment as hereinafter provided. (Appointment by Court.)  243. A guardian of the person or property, or both, of a person residing in this State, who is a minor, or of unsound mind, may be appointed in all cases by the Probate Court, as provided in the Code of Civil Procedure.  244. A guardian of the property within this State of a person not residing therein, who is a minor, or of unsound mind, may be appointed by the Probate Court. (Rules for awarding custody of minor.)  246. In awarding the custody of a minor, or in appointing a general guardian, the Court or officer is to be guided by the following considerations: 1. By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare; and if the child is of a sufficient age to form an intelligent preference, the Court may consider that preference in determining the question. 2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child is of tender years it should be given to the mother; if it is of an age to require education and preparation for labor or business, then to the father. 3. Of two persons equally entitled to the custody in other respects, preference is to be given as follows: First — To a parent. Second — To a relative. Third — To one who was indicated by the wishes of a deceased parent. Fourth — To one who already stands in the position of a trustee of a fund to be applied to the child’s support. Fifth — To one of good moral character. (Death of a joint guardian.)  252. On the death of one of two or more joint guardians, the power continues to the survivor until a further appointment is made by the Court. (Removal of guardian.)  253. A guardian may be removed by the Probate Court for any of the following causes: 1. For abuse of his trust; 2. For continued failure to perform its duties; 3. For incapacity to perform its duties; 4. For gross immorality; 5. For having an interest adverse to the faithful performance of his duties; 6. For removal from the State; 7. In the case of a guardian of the property, for insolvency; or, 8. When it is no longer proper that the ward should be under guardianship. (Guardian appointed by parent, how superseded.)  254. The power of a guardian appointed by a parent is superseded: 1. By his removal, as provided by Section 253; 2. By the solemnized marriage of the ward; or, 3. By the ward’s attaining majority. (Guardian appointed by Court, how superseded.)  255. The power of a guardian appointed by a Court is superseded only: 1. By the order of the Court; or, 2. If the appointment was made solely because of the ward’s minority, by his attaining majority. (Release by ward.)  256. After a ward has come to his majority, he may settle accounts with his guardian, and give him a release, which is valid if obtained fairly and without undue influence. (Guardian’s discharge.)  257. A guardian appointed by a Court is not entitled to his discharge until one year after the ward’s majority. (Fixing the time of enjoyment.)  707. The time when the enjoyment of property is to begin or end may be determined by computation, or be made to depend on events. In the latter case, the enjoyment is said to be upon condition. (Conditions.)  708. Conditions are precedent or subsequent. The former fix the beginning, the latter the ending, of the right. (Certain conditions precedent void.)  709. If a condition precedent requires the performance of an act wrong of itself, the instrument containing it is so far void, and the right cannot exist. If it requires the performance of an act not wrong of itself but otherwise unlawful, the instrument takes effect and the condition is void. (Conditions restraining alienation void.)  711. Conditions restraining alienation, when repugnant to the interest created, are void. (Servitudes attached to land.)  801. The following land burdens, or servitudes upon land, may be attached to other land as incidents or appurtenances, and are then called easements: 1. The right of pasture; 2. The right of fishing; 3. The right of taking game; 4. The right of way; 5. The right of taking water, wood, minerals, and other things; 6. The right of transacting business upon land; 7. The right of conducting lawful sports upon land; 8. The right of receiving air, light, or heat from or over, or discharging the same upon or over land; 9. The right of receiving water from or discharging the same upon land; 10. The right of flooding land; 11. The right of having water flow without diminution or disturbance of any kind; 12. The right of using a wall as a party wall; 13. The right of receiving more than natural support from adjacent land or things affixed thereto; 14. The right of having the whole of a division fence maintained by a coterminous owner; 15. The right of having public conveyances stopped, or of stopping the same on land; 16. The right of a seat in church; 17. The right of burial. (Servitudes not attached to land.)  802. The following land burdens, or servitudes upon land, may be granted and held, though not attached to land: 1. The right of fishing and taking game; 2. The right of a seat in church; 3. The right of burial; 4. The right of taking rents and tolls; 5. The right of way. (By whom grantable.)  804. A servitude can be created only by one who has a vested estate in the servient tenement. (Extent of servitudes.)  806. The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. (Apportioning easements.)  807. In case of partition of the dominant tenement the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. (How extinguished.)  811. A servitude is extinguished: 1. By the vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise; or, 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment. (Simple occupancy.)  1006. Occupancy for any period confers a title sufficient against all except the State and those who have title by prescription, accession, transfer, will, or succession. (Uniting materials and workmanship.)  1028. If one makes a thing from materials belonging to another, the latter may claim the thing on reimbursing the value of the workmanship, unless the value of the workmanship exceeds the value of the materials, in which case the thing belongs to the maker, on reimbursing the value of the materials. (Inseparable materials.)  1029. Where one has made use of materials which part belong to him and in part to another, in order to form a thing of a new description, without having destroyed any of the materials, but in such a way that they cannot be separated without inconvenience, the thing formed is common to both proprietors; in proportion, as respects the one, of the materials belonging to him, and as respects the other, of the materials belonging to him and the price of his workmanship. (Materials of several owners.)  1030. When a thing has been formed by the admixture of several materials of different owners, and neither can be considered the principal substance, an owner without whose consent the admixture was made may require a separation, if the materials can be separated without inconvenience. If they cannot be thus separated, the owners acquire the thing in common, in proportion to the quantity, quality, and value of their materials; but if the materials of one were far superior to those of the others, both in quantity and value, he may claim the thing on reimbursing to the others the value of their materials. (Willful trespassers.)  1031. The foregoing sections of this Article are not applicable to cases in which one willfully uses the materials of another without his consent; but, in such cases, the product belongs to the owner of the material, if its identity can be traced. (Owner may elect between the thing and its value.)  1032. In all cases where one whose material has been used without his knowledge, in order to form a product of a different description, can claim an interest in such product, he has an option to demand either restitution of his material in kind, in the same quantity, weight, measure, and quality, or the value thereof; or where he is entitled to the product, the value thereof in place of the product. (Wrongdoer liable in damages.)  1033. One who wrongfully employs materials belonging to another is liable to him in damages, as well as under the foregoing provisions of this Chapter. (Who may make a will.)  1270. Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in Title VII of this Part, being chargeable in both cases with the payment of all the decedent’s debts, as provided in the Code of Civil Procedure. (Monomaniac incompetent)  1271. A person having any insane delusion is incompetent to make a will. (Written will, how to be executed.)  1276. Every will, other than a nuncupative will, must be in writing; and every will, other than an olographic will, and a nuncupative will, must be executed and attested as follows: 1. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto; 2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by bis authority; 3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and, 4. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request, and in his presence. (Witness to add residence.)  1278. A witness to a written will must write, with his name, his place of residence; and a person who subscribes the testator’s name, by his direction, must write his own name as a witness to the will. But a violation of this section does not affect the validity of the will. (Republication by codicil.)  1287. The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil. (Nuncupative will, how to be executed.)  1288. A nuncupative will is not required to be in writing, nor to be declared or attested with any formalities. (Same.)  1289. To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars; 2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect; 3. The decedent must, at the time, have been in his last illness, or in actual military service in the field, or doing duty ou shipboard at sea, and in either case in actual contemplation, fear, or peril of death; 4. Except in the cases mentioned in Subdivision 3 of this section, it must be made at the dwelling house of the testator, or where he was residing for the space of ten days or more, unless taken sick from home and death ensues before his return. (Probate of nuncupative wills.)  1290. No proof must be received of any nuncupative will, unless it is offered within six months after speaking the testamentary words, nor unless the words, or the substance thereof, were reduced to writing within thirty days after they were spoken.  1291. No probate of any nuncupative will must be granted for fourteen days after the death of the testator, nor must any nuncupative will be at any time proved, unless the testamentary words, or the substance thereof, be first committed to writing, and process issued to call in the widow, or other persons interested, to contest the probate of such will, if they think proper. (Evidence of revocation.)  1293. When a will is canceled or destroyed by any other person than the testator, the direction of the testator, and the fact of such injury or destruction, must be proved by two witnesses. (Revocation of duplicate.)  1295. The revocation of a will, executed in duplicate, may be made by revoking one of the duplicates. (Revocation by subsequent will.)  1296. A prior will is not revoked by a subsequent will, unless the latter contains an express revocation, or provisions wholly inconsistent with the terms of the former will; but in other cases the prior will remains effectual so far as consistent with the provisions of the subsequent will. (Effect of a marriage of a woman on her will.)  1300. A will, executed by an unmarried woman, is revoked by her subsequent marriage, and is not revived by the death of her husband. (Contract of sale not a revocation.)  1301. An agreement made by a testator, for the sale or transfer of property disposed of by a will previously made, does not revoke such disposal; but the property passes by the will, subject to the same remedies on the testator’s agreement, 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. (Mortgage not a revocation of will.)  1302. A charge or incumbrance upon any estate, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not a revocation of any will relating to the same estate which was previously executed; but the devise and legacies therein contained must pass, subject to such charge or incumbrance. (Conveyance, when not a revocation.)  1303. A conveyance, settlement, or other act of a testator, by which his interest in a thing previously disposed of by his will is altered, but not wholly divested, is not a revocation; but the will passes the property which would otherwise devolve by succession. (Conditional devises and bequests.)  1345. 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. (Condition precedent, what.)  1346. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. (Effect of condition precedent.)  1347. Where a testamentary disposition is made upon a condition precedent, nothing vests until the 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. (Conditions precedent, when deemed performed.)  1348. A condition precedent in a will is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. (Conditions subsequent, what.)  1349. 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. (Nature and designation of legacies.)  1357. Legacies are distinguished and designated, according to their nature, as follows: (Specific.) 1. A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator, is specific; if such legacy fails, resort cannot be had to the other property of the testator; (Demonstrative.) 2. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is 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; (Annuities.) 3. An annuity is a bequest of certain specified sums 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; (Residuary.) 4. A residuary legacy embraces only that which remains after all the bequests of the will are discharged; (General.) 5. All other legacies are general legacies. (Who first succeeds to possession of estates not devised, and for what purpose.)  1384. The property, both real and personal, of any one who dies without disposing of it by will, passes, in the first instance, to the personal representative of such person as Trustee: 1. To make the provision for the surviving husband, or wife, or child, which is directed by Title XI, of Part III, of the Code of Civil Procedure; 2. To apply the property to the payment of the debts of the decedent, according to the Title on Wills, and the provisions of the Code of Civil Procedure; and, 3. To distribute any remaining property among those entitled to succeed to the property of the decedent, according to the provisions of this Title. (Same.)  1386. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the same by will, it is succeeded to, and must be distributed, subject to the payment of his debts, in the following manner: 1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation. If there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation; 2. If the decedent leaves no issue, the estate goes in equal shares to the surviving husband or wife, and to the decedent’s father. If there be no father, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if he leaves a mother also, she takes an equal share with the brothers and sisters. If decedent leaves no issue, nor husband, nor wife, the estate must go to his father; 3. If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if a mother survives, she takes an equal share with the brothers and sisters; 4. If the decedent leaves no issue, nor husband, nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters; 5. If the decedent leaves a surviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife; 6. If the decedent leaves no issue, nor husband, nor wife, and no father, nor mother, nor brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote; however: 7. If the decedent leaves several children, or one child and the issue of one or more other children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation; 8. If, at the death of such child, who dies underage, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation; 9. If the decedent leaves no husband, wife, or kindred, the estate escheats to the State, for the support of common schools. (Illegitimate children to inherit in certain events.)  1387. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. (Value of advancements, how determined.)  1398. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. (Obligation, when conditional.)  1434. An obligation is conditional, when the rights or duties of any party thereto depend upon the occurrence of an uncertain event. (Conditions, kinds of.)  1435. Conditions may be precedent, concurrent, or subsequent. (Conditions precedent.)  1436. A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. (Conditions concurrent.)  1437. Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. (Condition subsequent.)  1438. A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. (Impossible or unlawful conditions void.)  1441. A condition in a contract, the fulfillment of which is impossible or unlawful, within the meaning of the Article on the Object of Contracts, or which is repugnant to the nature of the interest created by the contract, is void. (Novation, what.)  1530. Novation is the substitution of a new obligation for an existing one. (Modes of novation.)  1531. Novation is made: 1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation; 2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or, 3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former. (Rescission of novation.)  1533. When the obligation of a third person, or an order upon such person, is accepted in satisfaction, the creditor may rescind such acceptance if the debtor prevents such person from complying with the order, or from fulfilling the obligation; or if, before the creditor can with reasonable diligence reach such person, he becomes insolvent. (When communication deemed complete.)  1583. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section. (Obligation of finder.)  1864. One who finds a thing lost is not bound to take charge of it, but if he does so he is thenceforward a depositary for the owner, with the lights and obligations of a depositary for hire. (Finder to notify owner.)  1865. If the finder of a thing knows or suspects who is the owner, he must, with reasonable diligence, give him notice of the finding; and if he fails to do so, he is liable in damages to the owner, and has no claim to any reward offered by him for the recovery of the thing, or to any compensation for his trouble or expenses. (Claimant to prove ownership.)  1866. The finder of a thing may, in good faith, before giving it up, require reasonable proof of ownership from any person claiming it. (Reward, etc., to finder.)  1867. The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it. (Finder may put thing found on storage.)  1868. The finder of a thing may exonerate himself from liability at any time by placing it on storage with any responsible person of good character, at a reasonable expense. (When finder may sell the thing found.)  1869. The finder of a thing may sell it, if it is a thing which is commonly the subject of sale, when the owner cannot, with reasonable diligence, be found, or, being found, refuses upon demand to pay the lawful charges of the finder, in the following cases: 1. When the thing is in danger of perishing, or of losing the greater part of its value; or, 2. When the lawful charges of the finder amount to two thirds of its value. (How sale is to be made,)  1870. A sale under the provisions of the last section must be made in the same manner as the sale of a thing pledged. (Surrender of thins to the finder.)  1871. The owner of a thing found may exonerate himself from the claims of the finder by surrendering it to him in satisfaction thereof. (Hiring, what.)  1925. Hiring is a contract by which one gives to another the temporary possession and use of property, other than money, for reward, and the latter agrees to return the same to the former at a future time. (Products of thing.)  1926. The products of a thing hired, during the hiring, belong to the hirer. (Thing let for a particular purpose.)  1930. When a thing is let for a particular purpose the hirer must not use it for any other purpose; and if he does, the letter may hold him responsible for its safety during such use in all events, or may treat the contract as thereby rescinded. (When hirer may terminate the hiring.)  1932. The hirer of a thing may terminate the hiring before the end of the term agreed upon: 1. When the letter does not, within a reasonable time after request, fulfill his obligations, if any, as to placing and securing the hirer in the quiet possession of the thing hired, or putting it into good condition, or repairing; or, 2. When the greater part of the thing hired, or that part which was and which the letter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the ordinary negligence of the hirer. (Lessor to make dwelling house fit for its purpose.)  1941. The lessor of a building intended for the occupation of human beings must put it into a condition fit for that purpose, and must repair all subsequent dilapidations thereof, except such as are mentioned in Section 1929. (When lessee may make repairs, etc.)  1942. If, within a reasonable time after notice to the lessor, of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, and deduct the expenses of such repairs from the rent, or otherwise recover it from the lessor. (Term of hiring when no limit is fixed.)  1943. A hiring of real property, other than lodgings and dwelling houses, in places where there is no usage on the subject, is presumed to be for one year from its commencement, unless otherwise expressed in the hiring. (Hiring of lodgings for indefinite term.)  1944. A hiring of lodgings or a dwelling house for an unspecified term is presumed to have been made for such length of time as the parties adopt for the estimation of the rent. Thus a hiring at a monthly rate of rent is presumed to be for one month. In the absence of any agreement Respecting the length of time or the rent, the hiring is presumed to be monthly. (Renewal of lease by lessee's continued possession.)  1945. If a lessee of real property remains in possession thereof after the expiration of the hiring, and the lessor accepts rent from him, the parties are presumed to have renewed the hiring on the same terms and for the same time, not exceeding one month when the rent is payable monthly, nor in any case one year. (Notice to quit.)  1946. A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in the last section, at the end of the term implied by law, unless one of the parties gives notice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding one month. (Rent, when payable.)  1947. When there is no usage or contract to the contrary, rents are payable at the termination of the holding, when it does not exceed one year. If the holding is by the day, week, month, quarter, or year, rent is payable at the termination of the respective periods, as it successively becomes due. (Attornment of a tenant to a stranger.)  1948. The attornment of a tenant to a stranger is void, unless it is made with the consent of the landlord, or in consequence of a judgment of a Court of competent jurisdiction. (Obligations of letter of personal property.)  1955. One who lets personal property must deliver it to the hirer, secure his quiet enjoyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occasioned by the fault of the hirer and not the natural result of its use. (Ordinary expenses.)  1956. A hirer of personal property must bear all such expenses concerning it as might naturally be foreseen to attend it during its use by him. All other expenses must be borne by the letter. (Extraordinary expenses.)  1957. If a letter fails to fulfill his obligations, as prescribed by Section 1955, the hirer, after giving him notice to do so, if such notice can conveniently be given, may expend any reasonable amount necessary to make good the letter’s default, and may recover such amount from him. (Return of thing hired.)  1958. At the expiration of the term for which personal property is hired, the hirer must return it to the letter at the place contemplated by the parties at the time of hiring; or, if no particular place was so contemplated by them, at the place at which it was at that time. (Insurance of lottery or lottery prize unauthorised.)  2532. The preceding section does not authorize an insurance for or against the drawing of any lottery, or for or against any chance or ticket in a lottery drawing a prize.