KFLCC Kingdom Law 2nd Ed.

364

DEVISE

DEVIATION.

DEVIATION. In insurance. Varying from the risks insured against, as described In the policy, without necessity or just cause, after the risk has begun. 1 Phil. Ins. § 977, et seq.; 1 Arn. Ins. 415, et seq. Hostetter v. Park, 137 U. S. 30, 11 Sup. Ct 1, 34 L. Ed. 568; Wilkins v. Insurance Co., 30 Ohio St. 317, 27 Am. Rep. 455; Bell v. Insurance Co., 5 Rob. (La.) 445, 39 Am. Dec. 542; Audenreid y. Insurance Co., 60 N. Y. 484, 19 Am. Rep. 204; Crosby v. Fitch, 12 Conn. 420, 31 Am. Dec. 745; The Iroquois, 118 Fed. 1003, 55 O. C. A. 497. Any unnecessary or unexcused departure from the usual or general mode of carrying on the voyage insured. 15 Amer. Law Rev. 108. Deviation is a departure from the course of the voyage insured, or an unreasonable delay in pursuing the voyage, or the com mencement of an entirely different voyage. Civil Code Cal. I 2694. A deviation is a voluntary departure from or delay in the usual and regular course of a voyage insured, without necessity or reasonable cause. This discharges the insurer, from the time of the deviation. Coffin v. Newburyport Marine Ins. Co., 9 Mass. 436. In contracts. A change made in the progress of a work from the original terms or design or method agreed upon. An invention or contrivance; any result of design; as in the phrase "gambling device," which means a machine or contrivance of any kind for the playing of an unlawful game of chance or hazard. State v. Blackstone, 115 Mo. 424, 22 S. W. 370. Also, a plan or project; a scheme to trick or de ceive; a stratagem or artifice; as in the laws relating to fraud and cheating. State v. Smith, 82 Minn. 342, 85 N'. W. 12. Also an emblem, pictorial representation, or distin guishing mark or sign of any kind; as in the laws prohibiting the marking of ballots used in public elections with "any device." Bax ter v. Ellis, 111 N. C. 124, 15 S. E. 938, 17 L. R. A. 382; Owens v. State, 64 Tex. 509; Steele r. Calhoun, 61 Miss. 556. In a statute against gaming devices, this term is to be understood as meaning something form ed by design, a contrivance, an invention. It is to be distinguished from "substitute," which means something put in the place of another thing, or used instead of something else. Hen derson v. State, 59 Ala. 91. In patent law. A plan or contrivance, or an application, adjustment, shaping, or com bination of materials or members, for the purpose of accomplishing a particular result or serving a particular use, chiefly by me chanical means and usually simple in char acter or not highly complex, but involving the exercise of the inventive faculty. An instrument of torture, formerly used to extort confes sions, etc It was made of several irons, wlfich were fastened to the neck and legs, DEVICE. DEVIL ON THE NECK.

and wrenched together so as to break the back. Cowell.

DEVISABLE.

Capable of being devised.

1 Pow. Dev. 165; 2 Bl. Comm. 373.

DEVISAVTT VEL NON. In practice. The name of an issue sent out of a court of chancery, or one which exercises chancery jurisdiction, to a court of law, to try the va lidity of a paper asserted and denied to be a will, to ascertain whether or not the testator did devise, or whether or not that paper was his will. 7 Brown, Pari. Cas. 437; 2 Atk. 424; Asay v. Hoover, 5 Pa. 21, 45 Am. Dec. 713. 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. T. 261, 21 N. E. 84; Fere bee v. Procter, 19 N. C. 440; Pratt v. Mc Ghee, 17 S. C. 428; In re Fetrow's Estate, 58 Pa. 427; Jenkins v. Tobin, 31 Ark. 306; In re Dailey's Estate, 43 Misc. Rep. 552, 89 N. T. Supp. 541. Synonyms. The term "devise" is properly restricted to real property, and is not applicable to testamentary dispositions of personal proper ty, which are properly called "bequests" or "leg acies." But this distinction will not be allow ed in law to defeat the purpose of a testator; and all of these terms may be construed inter changeably or applied indifferently to either real or personal 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 avent, 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 spe cific. A general devise is one which passes lands of the testator without a particular enu meration 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 ad dition of any words to show how great an es tate is meant to be given, or without words in dicating 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 L. R. A. 724. Specific devises are devises of lands particu larly specified in the terms of the devise, as op posed to general and residuary devises of land, in which the local or other particular descrip tions are not expressed. For example, "I de vise 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 de vise. 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 un certain event, by which it is either to take ef fect or be defeated. Civ. Code Cal. § 1345. An executory devise of lands is such a disposition DEVISE.