Short answer. It depends on whether the legacy is of personal property or real property. A generic legacy of personal property is valid even if the estate has none of it — the estate must acquire it. A generic devise of real property is only valid if the estate already has immovable property of that kind.
What the law says
A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate.
Civil Code, Article 941 — Generic Legacies. Read the full provision →
Personal property legacy: valid even without estate stock
Article 941 of the Civil Code draws a clear distinction between a generic legacy of personal (movable) property and a generic devise of real (immovable) property. For personal property, the rule is generous: a legacy of generic personal property is valid even if there are no things of the same kind in the estate at the time of the testator's death. If the testator leaves a bequest of a motor vehicle and the estate owns none, the estate must acquire one to satisfy the legacy. The heir's right is real; the estate does not escape the obligation simply because it lacks the specific type of property.
Real property devise: estate must already own it
The rule is stricter for real property. A devise of indeterminate real property — for example, "I give a parcel of land to my godchild" — is valid only if there is immovable property of its kind already in the estate. If the testator owned no land at the time of death, the devise has nothing to fasten onto and is void. The estate is not obligated to purchase real property to satisfy a devise; the testator must have owned the type of real property bequeathed for the devise to take effect.
Who chooses which specific item to deliver
When a legacy or devise covers a generic type of thing rather than a specific identified item, someone must decide which particular item satisfies the obligation. Article 941 gives that right to the executor or administrator of the estate. The executor must comply with the legacy by delivering a thing that is neither of inferior nor of superior quality — a middle-of-the-range item appropriate to the type described in the will. The legatee cannot demand the best item in the category, and the executor cannot discharge the obligation by handing over the worst.
Generic legacies compared to specific legacies
A specific legacy is a bequest of a particular identified object — "the gold watch I keep on my desk," for example. If that specific item does not exist in the estate when the testator dies, the specific legacy generally fails. A generic legacy, by contrast, refers to a class of things — "a watch," "a vehicle" — without identifying a specific piece. The personal-property rule in Article 941 protects generic legatees of movable things because any equivalent item can satisfy the obligation. The same flexibility does not extend to real property, where the obligation is tied to what the estate actually owns.