person. If he die, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession." "And this doctrine has been constantly maintained in England and America with unbroken confidence." Story, Confl. Laws, § 380. Finding no statute to the contrary, our conclusion is that the distribution in question must be made in accordance with the law or the state of Nevada. But even if the law of California should govern in the matter, the same result must follow, if, by the law of California, a demonstrative legacy to kindred is not preferred to a like legacy to strangers upon distribution, where none of the legacies have had to be resorted to for the payment of the debts of the decedent. We proceed, therefore, to examine the statute of this state upon the point, the provisions of which, we regret to say, are somewhat confused and conflicting.

By section 1357 of the Civil Code legacies are distinguished and designated according to their nature. The second subdivision of that section defines a demonstrative legacy. It reads: "A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid." The statute then goes on in the same subdivision of the same section to prescribe the consequences of a failure, in whole or in part, of such fund or property. It does not provide that where the fund or property is insufficient to pay all of the demonstrative legacies, those to the kindred shall prevail over those to the persons not so related. On the contrary, the consequence declared is: "If such fund or property fail, in whole or in part, resort may be had to the general assets, as in case of a legacy." Subdivision 2, § 1357, supra. It is further provided, by section 1362 of the same chapter, as follows: "Abatement takes place in any class only as between legacies of that class, unless a different intention is. expressed in the will." Now, all demonstrative legacies are of the same class, regardless of the persons to whom they are made, whether kindred or strangers; for section 1357 in terms declares:

"Legacies are distinguished and designated according to their nature, as follows: (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. (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. (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. (4) A residuary legacy embraces only that which remains after all the bequests of the will are discharged. (5) All other legacies are general legacies."

Here, by express statutory provision, specific legacies constitute one class, demonstrative legacies constitute another class, annuities constitute another, residuary legacies constitute another, and general legacies constitute still another class. That all of the legacies

in question in the present case belong to the same class, does not admit of doubt; for they are all demonstrative legacies. The property to be distributed consists of the particular bonds pointed out by the testator from which the legacies made by him were to be paid. But the bonds are insufficient to pay all of the legacies in full, or even those to the kindred. Abatement must therefore necessarily take place. How shall the legacies abate? The statute, as has been seen, declares that abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will. The will in this case being silent upon the question of abatement, "abatement," under the statute, "takes place in any class only as between legacies of that class." This language would seem, unmistakably, to put legacies of the same class, in the matter of abatement, upon the same footing. It is true that by section, 1361 it is provided that "legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator." But what is here meant by the word "chargeable?" This section was in the Code as originally adopted. It followed then, as it does now, section 1360, which then read as follows:

"In the application of the personal property of a decedent to the payment of debts, legacies must be charged in the following order, unless a different intention is expressed in the will. (1) Residuary legacies; (2) general legacies; (3) legacies given for a valuable consideration, or for the relinquishment of some right or interest; (4) specific and demonstrative legacies."

For the payment of the debts of the decedent, legacies made by him were thus made chargeable in the order designated in section 1360; and the legislature followed this with a provision declaring that "legacies to husband, widow, or kindred of any class are chargeable only after legacies to persons not related to the testator." It is manifest from these provisions that, as originally adopted, it was for the payment of the debts of the decedent that legacies to husband, widow, or kindred were declared to be chargeable only after legacies to persons not related to the testator. Section 1361 has remained as at first adopted, as have also sections 1357 and 1362, herein before referred to. But in 1874 section 1360, as also sections 1358 and 1359, of the same chapter were amended. Have the amendments of those sections, or either of them, worked a change in the meaning of section 1361, which, as has been said, has remained unchanged since its first adoption? By section 1358, as originally enacted, the property of a person dying intestate had to be resorted to, for the payment of debts, in a certain named order. But, by the amendment to this section of 1874, when a person dies intestate, all his property, real and personal, without any distinction between them, is chargeable with the payment of his debts, except as otherwise provided in the Civil Code and the Code of Civil Procedure. Section 1359, as originally enacted, related to the order in which the property of a testator should be resorted to for payment of debts and legacies, and section 136v, as

originally enacted, has already been set out at large. By the amendments of 1874, sections 1359 and 1360 were made to read as follows: "Sec. 1359. The property of a testator, except as otherwise specially provided for in this Code and the Code of Civil Procedure, must be resorted to for the payment of debts in the following order: (1) The property which is expressly appropriated by the will for the payment of the debts; (2) property not disposed of by the will; (3) property which is devised or bequeathed to a residuary legatee; (4) property which is not specifically devised or bequeathed; and (5) all other property ratably. Before any debts are paid, the expenses of the administration and the allowance to the family must be paid or provided for.

"Sec. 1360. The property of a testator, except as otherwise specially provided in this Code and the Code of Civil Procedure, must be resorted to for the payment of legacies in the following order: (1) The property which is expressly appropriated by the will for the payment of the legacies; (2) property not disposed of by the will; (3) property which is devised or bequeathed to a residuary legatee; (4) property which is specifically devised or bequeathed."

How the amendments of 1874 have operated so as to declare in effect that property pointed out by the testator for the payment of legacies should not be charged with the payment of legacies to strangers until all legacies to kindred are fully satisfied, we are unable to see. Beyond question, the legislature has not so declared in terms. On the contrary, as we have seen, the statute expressly prescribes the consequences of a failure, in whole or in part, of the fund or property from which legacies such as those here in question are to be paid, and those consequences not only do not include a preference to the kindred, but, if we correctly construe the section in regard to abatement, expressly places all legacies of the same class upon the same plane. This, however, is qualified by section 1361, which clearly, now, as well as before the amendments of 1874, in so far as the payments of debts are concerned, makes legacies to husband, widow, or kindred of any class chargeable only after legacies to persons not related to the testator. Of course, in cases where such legacies have to be resorted to for the payment of debts, there would necessarily be a preference given to legacies to husband, widow, and kindred over legacies to persons not related to the testator. In the case at bar, however, it does not appear that resort had to be made to any of the legacies for the payment of the debts of the decedent. But it is to this extent only that a preference is given to legacies to husband, widow, or kindred over legacies to persons not so related to the testator. Nowhere, expressly or by fair intendment, is any legacy of one class made chargeable with the payment of another legacy of the same class. Under sections 1357, 1359, 1360, and 1362, all demonstrative legacies stand upon an equality. Section 1361, however, operates as a qualification to this by providing in effect, as we understand it, that legacies to husband, widow, or kindred of any class are chargeable for debts only after legacies to persons not related to the testator. To this extent, and to this extent only, are legacies to husband, widow, or kindred given a preference over legacies of the same class to strangers. But

this preference does not affect the result in the present case, since, as has already been observed, it does not appear here that any of the legacies were resorted to for the payment of debts.

Cause remanded, with directions to the court below to modify the judgment in accordance with the views herein expressed.

We concur:

SHARPSTEIN, J.; MORRISON, C. J.; McKINSTRY, J

THORNTON, J., concurring. I concur in the judgment on the ground first discussed in the foregoing opinion. The conclusion reached as to that ground, to-wit, that the law of the state of Nevada controls, disposes of the case. I think that the second ground considered and passed on in the opinion is not in the case, and therefore it is unnecessary to say anything concerning it.

MCKEE, J., concurring. It is the place of the actual domicile of a person at the time of his death which determines the distribution of his personal estate; and as the court below found, as fact, that the domicile of the deceased was at the time of his death in the state of Nevada, the court should have decreed distribution of the personal assets of the estate of the decedent according to the law of that state; therefore I concur in the judgment.

WILLIAMS V. MILLER and others. (No. 8,629.)1

Filed February 16, 1885.

PASTURAGE-CONSTRUCTION OF CONTRACTS.

A contract whereby a plaintiff agrees to give to defendant the use of his land for pasturing, at their own risk and cost, "all of defendant's cattle which it shall be capable of grazing, but in no case less than 3,000 head," is a contract to pay for 3,000 head, though the land be not capable of sustaining more than 700 head.

Department 1. Appeal from the superior court of the city and county of San Francisco.

G. W. Gordon, for appellant.

Robinson, Olney & Byrne, for respondents.

BY THE COURT. It was held by the court below that the agreement sued on was, on the part of plaintiff, a contract to agist upon his lands 3,000 head, or more, of cattle. An agister is one who takes in horses or other animals to pasture at certain rates. Bouv. "Agister;" Story, Bailm. 443. The agister proper takes charge and control of the animals. Howard v. Throckmorton, 59 Cal. 88. If he neglects his trust he is liable in damages. He is bound to take reasonable care of the animals, and is responsible for injury resulting from any ordinary casualty, if it could have been averted by the exercise of such reasonable care. 1 Add. Cont. 608. Of course, he is bound to furnish them with proper "eatage." But here, by the terms

1 Reversed in banc. See 9 Pac. 166, 68 Cal. 290.

of the contract, the defendants agreed "to pasture on said land, at their own risk and cost for herding, etc., all the cattle it shall be capable of grazing over and above the sheep hereinafter mentioned, and in no case less than three thousand head."

The contract was made with reference to a particular tract of "swamp and overflowed land." Did the plaintiff stipulate that the land would furnish proper pasturage for 3,000 head of cattle? We think not. He agreed to give, and did give, the use of the land. The tract of land was known to both parties to the contract. When plaintiff permitted defendants to enter upon the lands with cattle he discharged the obligation imposed upon him. There is no pretense that he interfered with the consumption by defendants' cattle of any portion of the herbage, or that he permitted others to interfere with it. The defendants agreed to put not less than 3,000 head upon the tract of land described, and to pay a dollar a head for such pasturage as the cattle should get there. As the tract of land was left open to them, and they were furnished with the exclusive use of it for the purpose of pasturage, they were liable for $3,000, whether they placed upon the land any stock or not. As it turned out (the court found) the land was not fit for the herding or pasturing of more than about 700 cattle. But this the defendants knew or could have known before they entered into the contract. It was a bad bargain on their part, but they took the risk that they would get ample consideration for their money. There is no averment in the answer of fraudulent representation with respect to the character of the land or pasturage. There was no failure of consideration, but a mistake or misapprehension on the part of the defendants with respect to the value of the consideration.

Judgment and order reversed, and cause remanded for a new trial.