DEVISE

Definition of DEVISE in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms.

Definition of DEVISE

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; Murchison v. Wallace, 156 Va, 728, 159 S.E. 106, 108.

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.Wills, 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 A. 558, 2 L.R.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 all 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. At common law, all devises of land were deemed to be "specific" whether the land was identified in the devise or passed under the residuary clause. In re Sutton's Estate, 11 Del.Ch. 460, 97 A. 624, 626. 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. '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 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. 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; Dean v. Crews, 77 Fla. 319, 81 So. 479. A limitation by will of a future estate or interest in land, which cannot, consistently with the rules of law, take effect as a remainder. 2 Pow.Dev. (by Jarman,) 237; Bean v. Atkins, 87 Vt. 376, 89 A. 643, 646. See Poor v. Considine, 6 Wall. 474, 18 L.Ed. 869; Glover v. Condell, 163 Ill. 566, 45 N.E. 173, 35 L.R.A. 360. A future interest taking effect as a fee in derogation of a defeasible fee devised or conveyed to the first taker, when created by will, is an "executory devise," and, when created by deed, is a "conditional limitation," and in either event is given effect as a shifting or springing use. McWilliams v. Havely, 214 Ky. 320, 283 S.W. 103, 104.

The estates known as a contingent remainder and an "executory devise" are both interests or estates in land to take effect in the future and depend upon a future contingency; an "executory devise" being an interest which the rules of law do not permit to be created in conveyances, but allow in case of wills. It follows a fee estate created by a will. A contingent remainder may be created by will or other conveyance and must follow a particular or temporary estate created by the same instrument of conveyance. Wilkins v. Rowan, 107 Neb. 180, 185 N.W. 437, 439. 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. McKeon, 53 N.J.Eq. 406, 32 A. 374. Residuary devise. A devise of all the residue of the testator's real property, that is, all that remains over and above the other devises.

Synonyms

The term "devise" is properly restricted to real property; testamentary dispositions of personal property being properly called "bequests" or "legacies." Borgner v. Brown, 133 Ind. 391, 33 N.E. 92.

To contrive; plan; scheme; invent; prepare. Stockton v. United States, C.C.A.I11., 205 F. 462, 464, 46 L.R.A.,N.S., 936.

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