Devise

A gift of real property by a person's last will and testament. The term "devise," properly and technicalproperty. 1 Hill, Abr. c. 36, notes 62-74. But it is also sometimes improperly applied to a bequest or legacy. See 2 Bouv. Inst, note 2095 et seq.; 4 Kent, Comm. 489; 8 Viner, Abr. 41; Comyn, Dig., "Estates by 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.

A testamentary disposition of land or realty; a gift of real property by the last will and testament of the donor. Scholle v. Scholle, 113 N. Y. 261, 21 N. E. 84; Fere-bee v. Procter, 19 N. C. 440; Pratt v. McGhee, 17 S, C. 428; In re Fetrow's Estote, 58 Pa. 427; Jenkins v. Tobin, 31 Ark. 306; In re Dailey's Estate, 43 Misc. Rep. 552, 89 N. Y. Supp. 541. Synonyms. The term "devise" is properly restricted to real property, and is not applicable to testamentary dispositions of personal property, which are properly called "bequests" or "legacies." But this distinction will not be allowed in law to defeat the purpose of a testator; and all of these terms may be construed interchangeably or applied indifferently to either real or personni property, if the context shows that such was the intention of the testator. Ladd v. Harvey, 21 N. H. 528; Borgner v. Brown, 133 Ind. 391, 33 N. E. 92; Oothout v. Rogers, 59 Hun, 97, 13 N. Y. Supp. 120; McCorkle v. Sherrill, 41 N. C. 176. Classification. Devises are contingent or vested; that is, after the death of the testator Contingent, when the vesting of any estate in the devisee is made to depend upon some future event, in which 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. Wilis, c. 26. Devises are also classed as general or specific. A general devise is one which passes lands of the testator without a particular enumeration or description of them; as, a devise of "all my lands" or "all my other lands."

In a more restricted sense, a general devise is one which grants a parcel of land without the addition of any words to show how great an estate is meant to be given, or without words indicating either a grant in perpetuity or a grant for a limited term ; in this case it is construed as granting a life estate. Hitch v. Patten, 8 Houst. (Del.) 334, 16 Atl. 558, 2 hR,A, 724. Specific devises are devises of lands particularly specified in the terms of the devise, as opposed to general and residuary devises of land, in which the local or other particular descriptions are not expressed. For example, "I devise my Hendon Hall estate" is a specific devise; but "I devise ali my lands," or, "all other my lands," is a general devise or a residuary devise. But all devises are (in effect) specific, even residuary devises being so. L. R. 3 Ch. 420; Id. 136. A conditional devise is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated. Civ. Code Cal. § 1345. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points:
(1) That it needs not any particular estate to support it;
(2) that by ft a fee-simple or other less estate may be limited after a fee-simple;
(3) that by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same. 2 Bl. Comm. 172.

In a stricter sense, a limitation by will of a future contingent interest in lands, contrary to the rules of the common law. 4 Kent, Comm. 263; 1 Steph. Comm. 564. A limitation by will of a future estate or interest in land, which can-apt, consistently with the rules of law, take effect as a remainder. 2 Pow. Dev. (by Jarman,) 237. See Poor v. Considine, 6 Wall. 474, l8 In Eld. 869; Bristol v. Atwater, 50 Conn. 406 ; Mangum v. Piester, 16 S. C. 325; Civ. Code Ga. 1895, § 3339; Thompson v. Hoop, 6 Ohio St. 487 ; Burleigh v. Clough, 52 N. H. 273, 13 Am. Rep. 23; In re Brown's Estate, 38 Pa. 294; Glover v. Condell, 163 111. 566, 45 N. E. 173, 35 Lb R. A. 360. Lapsed devise. A devise which' fails, or takes no effect, in consequence of the death of the devisee before the testator; the subject-matter of it being considered as not disposed of by the will. 1 Steph. Comm. 559; 4 Kent, Comm. 541. Murphy v. MeKeon, 53 N. J. Eq. 406, 32 Atl. 374. Residuary devise. A devise of all the residue of the testator's reni property, that is, all that remains over and above the other devises.

To give lands or hereditaments by will.

A gift of real property by will. Devise properly relates to the disposal of real property, not of personal. 21 Barb. 551, 561. Devise is properly applied to gifts of real preperty by will, but may ba extended to embrace personal property, to execute the intention of the testator. 6 Ired. Eq. 173. The words “devise,” “legacy,” and “bequest” may be applied indifferently to real or personal property, if such appears by the context of a will to have been the testator’sintention. 21 N. H. 514. Devises are contingent or vested; that is, after the death of the testator. Contingent, when the vesting of any estate in the devisee is made to depend upon some future event, in which cuse, 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 estute, this does not hinder the vesting of the estate at the death of the testator. 1 Jarm. Wills, ¢. 26. An exeeutory devise of lands is such a disposition of them by will that thereby no estate vesis at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: (1) That it needs not any particular estate to support it; (2) that by it a fee-simple or other less estate may be limited after a fee-simple; (3) that by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same. 2 Bl. Comm, 172,

1, V. Originally, to divide or distribute property; now, to give realty by will. See Devisare. 3, n. A disposition of real property, contained in a man's last will and testament. ^ A testamentary disposition of land.' In England, an appointment of particular lands to a particular devisee,— in the nature of a conveyance by way of appointment.' ' Wilkins v. Tobacco Ins. Co., 30 Ohio St. 341 (1876): 2 Pars. Mar. Ins. 1. 2 Cofftn V. Ins. Co., ante; 7 Craneh, 26; 8 Wheat. 159; 8 id. 291; Pet. C. C. 98; 3 Kent, 31»-14. 8 1 Sumn. 400; 2 Wash. 80; 1 Newb. 449; Sprague, 141. See generally 15 Am. Law Eev. 108-20 (1831), cases. * Hostetter v. Gray, 11 F. E. 181 (1882), cases. 'Sheetz's Appeal, 100 Pa. 197 (1882). See generally 18 Cent. Law J. 83. » [2 Bl. Com. 372. ' Fetrow's Estate, 58 Pa. 427 (1868). 8 Harwood v. Goodright, 1 Cowp. 90 (1774), Mans- 198. Devisor.i He who gives realty by will. Devisee. He to whom it is given. But "devise "is often used in the sense of "bequeath" and " bequest," 'as referring to a legacy of personalty. In doubtful cases it is safest to adhere to the technical meaning, on the presumption that the testator used the word in that sense; but this rule will give way when it clearly appears that he understood and used the word in the popular sense.^ Contingent devise. When the vesting of the interest is made to depend upon the happening of some future event; in which case, if the event never occurs, or until it occurs, no estate vests. Vested devise. A devise which is not subject to a condition, precedent or unperformed. See Vest, 2, Vested. Executory devise. Such a disposition of lands by will that no estate vests at the death of the devisor, but on some future contingency.' A limitation by will of a future estate or interest in lands or chattels.* Such a limitation of a future estate or interest in lands as the law admits in the case of ' a will, though contrary to the rules of limitation, in conveyances at common law.^ Not, a mere possibility, but a substantial interest, and in respect to transmissibility stands on the same footing with a contingent remainder. « By it a remainder may be created contrary to the general rule, on the supposition that the testator acted without advice... An executory de,yise differs from A " remainder " in that it needs no particular estatp to support it; by it a fee-simple or other less estate may be limited after a fee-simple; and by means of it a remainder may be limited of a chattel-interest, after a particular estate for life.':A devise in future to an artificial being to be created is good as an executory devise.^ Although an estate may be devised to one in feesimple or fee-tail, with a limitation over by way of an executory devise, yet, when the will shows a clear purpose to give an absolute power of disposition to the first taker, the limitation over is void.' 1 DS-viz'-or; d5v-I-zee'. "Ladd V. Harvey, 31 N. H. 528 (1850); Fetrow's Estate, 58 Pa. 487 (1868); 21 Barb. 561; 13 id. 109. » [2 Bl. Com. 173. * Brown's Estate, 38 Pa. 294 (1861). 'Feame, Cont. Rem. 386; Jarman, Wills, 864. » Medley v. Medley, 81 Va. 268-78 (1886), cases. ' 2 Bl. Com. 173-75; Doe u Considine, 6 Wall. 474-75 (1867); 60 Conn. 407; 2 Mich. 296; 52 N. H. 278; 11 Wend. 878; 31 Barb. 568; 2 Washb. E. P, 679. s Quld V. Washington Hospital, 93 V. S. 313 (1877), cases; 2 Story, Eq. §§ 1146, 1160. " If there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A in fee and if he dies possessed of the property without lawful issue, the remainder over, or the remainder over the property which he, dying without heirs, should leave, or without selling or devising the same, — in all such cases the remainder over is void as a remainder because of the preceding fee, and it is void as an executory devise because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied by the will." ' See Accumulation; Bequest; Die, Without children; Lapse; Legacy; Eemaindeb; Eesiduaby^ Wiu., 2.

A gift of real property by will. Executory devise: T. Executory.

Fr. A boundary; a division line, or space separating lands. De devises et de boundes entre veisins; of divisions and bounds between neighbors. Britt. c. 42. Si devises entre veisins soient arres; if division lines or spaces between neighbors be ploughed up. Id. ibid.