DEVISE. A gift of real property by a person's last will and testament.
The term devise, properly and technically, applies only to real estate ; the object of the devise must, therefore, be that kind of property. 1 Hill, Abr. o. Nino. 62-74. But it is also sometimes improperly applied to a bequest or legaoy. See 2 Bouvier, Inst. n. 2095 et seq. ; 4 Kent, Comm. 499 ; 8 Viner, Abr. 41; Cemyns, Dig. Estates by Devise.
2. In regard to a laPsed devise, where the devisee dies during, the fife of the testator, the estate so devised will go to the heir not withstanding a residuary devise. But if the devise be void, as where the devisee is dead at the date of the will, or is made upon a Condition precedent which never happens, the estate will go to the residuary devisee, if the words are sufficiently comprehensive. 2 Vern. Ch. 394 ; 15 Ves. Ch. 589 ; 8 Whart. Penn. 477 ; 4 Kent, Comm. 541, 542, and cited in notes. But some of the eases hold in that ease, event that the estate goes to the heir. 6 Cann. 292 ; 4 Ired. Eq. 0. 320. By the English law a residuary he quest operates upon all the personal estate which the testator is poss'essed of at the time Of his death, and will include such as would have gone id pay specific legacies which lapse or are void. 4 Yes. Ch. 708, 732 ; 4 Ch. N. Y. 115 ; 6 id. 600 ; 4 Hawks, No. C. 213 ; 1 Dan. Ky. 206 ; 1 Dev. & B. Eq. No. C. 115, 113 ; 1 Jarman, Wills; 585– 599.
3. A general devise of lands will pass a reversion in fee, even thciugh the testator had other lands which will satisfy the words of the devise, and although it be highly impro bable that he had in mind such reversion. 3 P. Will. Ch. 56; 3 Atk. Ch. 492; Cowp. 808; 3 Brown, Parl. Cas. 493 ; 4 BroWn, Ch. 338; 1 Mete. Mass. 281; 8 Ves. Ch. 256 ; 15 id. 396.
A general devise will pass leases for years, if the testator have no other real estate upon which the will may Operate ; hut if he have both lands in fee and lands for years, a de vise of all his lands and tenements will com monly pass the lands in fee-simple. Croke Car. 293 ; 2 ,Atk. Ch. 450 ; 1 Ed. Ch. 151; 6 Sim. Ch. 99. But if a contrary in tention appear from the will, it will prevail. 5 Ves. Ch. 540 ; 9 East, 448 ; 6 Term, 345.
4. A devise in a will can never be re garded 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 he referred to that, unless some Other inten tion is obvious. 6 Coke, 176 ; 1 Atk. 559 ; 6 Madd. Ch. 190 ; 4 Kent, Comm. 334, 335 ; 1 Jarman, Wills, 628 et se4., 5. The devise of all one's lands will not generally earry the interest of a mortgagee in premises, unless that intent is apparent.
2 Vern. Ch. 621 ; 3 P. Will, 61; 1 Jarman, Wills, 633-637: The fact that the mortgagee is in possession is sometimes of importance in deterinining the puipese of the devise.
But many eases bold that the interest of a mortgagee or trustee will pass by a general devise of all one's lands, unless a contrary intent be shown. 13 Johns. N. Y. 537 ; 8 Yes. Ch. 407 ; 1 Jae. & W. Ch. 494. But see 9 Barnew. & C. 267. This is indeed the result of the modern decisions. 4 Kent, Comm. 539, 540 ; 1 Jarman, Wills, 638 et seq. It seems clear that a devise of one's mort gages will pass the beneficial title of the mortgagee. 4 Kent, Comm. 539.
6. 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 ease, if the event never occur, or until it does occur, no estate vests under the devise. But when the future event is re ferred to merely to determine the time at Whiell'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 Jarman, Wills, e. xxvi., and numerous cases cited. The laW favors the construction of the will that shall vest the estate. 21 Pick. Mass. 311 ; 1 Watts & S. Penn. 205. But this construction must not he carried to such an extent as to defeat the Manifest intent of ' the testator. 21 Pick. Mass. 311 ; 7 Mete. Mass. 171. Where the estate is given absd. lutely, but only the time of possession is de ferred, the devisee or legatee acquires a trans missible interest although lie never arrive at the age to take possession. 1 Ves. Sen. Ch. 44, 59, 118 ; 4 Pick. Mass. 198 ; 7 Mete. Mass. 173. Consult Redfield, Wills.