Devise

A gift of real property by a last will and testament. The term devise, properly and technically, applies only to real estate; 1 Hill, Abr. c.

36. 62; Dickerman v. Abrahams, 21 Barb. (N. Y.) 561.

But it is also sometimes improperly applied to a bequest or legacy.

See 4 Kent 4S9; 8 Viner, Abr. 41; Com. Dig. Estates by Devise; Rountree v. Pursell, 11 Ind. App. 522, 39 N. E. 717.

The terms "bequest" and "devise" are used indifferently, and legatees may take under a devise of lands, if the context of the will shows that such was the testator's intention; Ladd v. Harvey, 21 N. H. 615; In re Fetrow'a Estate, 58 Pa. 127. A general devise of lands will pass a reversion in fee, even though the testator has other lands which will satisfy the words of the devise, and although it he highly Improbable that he had in mind such reversion; 3 p. Wins. 56; 3 Bro. P. C. 408; 4 Bro. C. O. 338; Steel v. Cook, 1 Mete. (Mass I 281; 8 256. A general devise will pi for years, if the testator have no other real i which the will may operate; but if he have both lands in fee and lands for years, a devise of all his lands and tenements will commonly pass only the lands In feesimple; Cro. Car. •_".'::: Bowen v. Idley, l Ed ch. ( N. Y. i 161; <: Sim. '.''•». But if B trary Intention appear from the will, it will prevail; 5 Ves,.'■ 1": 9 East 448. \e, devised and bequeathed all bis furniture, goods, chattels and pression to the word "devise," in connection with the other terms of the will, that the gift passed all the property of the testator, whether real or personal; US91] 3 Ch. 389. A devise in a will can never be regarded as the execution of a power, unless that intention is manifest: as, where the will would otherwise have nothing upon which it could operate. But the devise to have that operation need not necessarily refer to the power in express terms. But where there is an interest upon which it can operate, it shall be referred to that, unless some other intention is obvious; G Co. 176; 6 Madd. 190; 4 Kent 334; 1 Jarin. Wills 628. The devise of all one's lands will not generally carry tbe interest of a mortgagee, in premises, unless that intent is apparent: 2 Vera. 621; 3 P. Wins. 61; 1 Jarm. Wills. <>J3. The fact that the mortgagee is in possession is sometimes of importance in determining the purpose of the devise. But many cases hold tbat the interest of a mortgagee or trustee will pass by a general devise of all one's land, unless a contrary intent be shown; Jackson v. De Lancy, 13 Johns. (N. Y.) 537. 7 Am. Dec. 403; -8 Ves. 407: 1 J. & W. 494. But see 9 B. & C. 267. This is indeed the result of the modern decisions, 4 Kent 539; 1 Jarm. Wills 638. It seems clear that a devise of one's mortgages will pass the beneficial title of the mortgagee; 4 Kent 539. Devises may be contingent or vested, after the death of the testator. They are contingent when the vesting of any estate in the devisee is made to depend upon some future event, in wbich case, if the event never occur, or until it does occur, no estate vests under the devise. But when the future event is referred to merely to determine the time at which the devisee shall come into the use of the estate, this does not hinder the vesting of the estate at the death of the testator; 1 Jarm. Wills, c. xxvi., and numerous cases cited. The law favors that construction of the will which will vest the estate; Olney v. Hull, 21 Pick. (Mass.) 311; King v. King, 1 W. & S. (Pa.) 205, 37 Am. Dec. 459. But this construction must not be carried to such an extent as to defeat the manifest intent of the testator; Olney v. Hull, 21 Pick. (Mass.) 311; Richardson v. Wheatland, 7 Mete. (Mass.) 171. Where the estate is given absolutely, but only the time of possession is deferred, the devisee or legatee acquires a transmissible interest although he never arrive at the age to take possession; 1 Ves. Sen. 44, 59, 118; Bowers v. Porter, 4 Pick. (Mass.) 198; Richardson v. Wheatland, 7 Mete. (Mass.).173. See -Lapsed Devise; Will; Legacy; Charge.