Gambar halaman

early date. The general criterion by which y ness, except the natural born idiot. Hiett
to test his authority is declared in the case v. Shull, 15 S. E. 146, 147, 36 W. Va. 563.
of Levett v. Farrar, Cro. Eliz. 294, in which
the court said that if a writ be directed to

the sheriff by the name of his office, and not
by a particular name, and doth not expressly
command him to execute it in person, the

See “Quasi Derelict."
undersheriff may execute it. Tillotson v. A “derelict' is defined by Judge Story to
Cheetham (N. Y.) 2 Johns. 63, 70.

be a "boat or vessel found deserted or a ban.

doned on the seas, whether it arose from DEPUTY STATE CONSTABLE.

accident or necessity or voluntary derelicThe phrase "deputy state constable” is tion.” The Hyderabad (U. S.) 11 Fed. 749, equivalent to the phrase "deputy consul of 754; Rowe v. The Brig (U. S.) 20 Fed. Cas. the commonwealth,” which is the designation 1281, 1282; Montgomery v. The T. P. Leathused in the statutes. Commonwealth v. In- ers (U. S.) 17 Fed. Cas. 641, 613. toxicating Liquors, 97 Mass. 63, 66.

The term “derelict" is used in the mari.

time law to designate a vessel found entirely DEPUTY TO CONGRESS.

deserted or abandoned at sea. Evans y. The Baldwin, J., in his opinion in the case of Charles (U. S.) 8 Fed. Cas. 838. Cherokee Nation v. Georgia, considers that the words “deputy to Congress,” occurring in the saken or found on the seas, without any per

Derelicts are boats or other vessels fortwelfth article of the Hopewell treaty with son in them. The Fairfield (U. S.) 30 Fed. 700, the Indians, providing that the Indians should 701; Montgomery v. The T. P. Leathers (U. have a right to send a “deputy of their choice s.) 17 Fed. Cas. 641, 642; Flinn v. The Lean

to Congress,” might mean either der (U. S.) 9 Fed. Cas. 275; Baker v. Hoag, a person having a right to sit in that body, 7 N. Y. (3 Seld.) 553, 559, 59 Am. Dec. 431. since at that time it was composed of delegates or deputies from the states, or it might A derelict is a ship wrecked at sea which mean an agent or minister. In either event, has been abandoned by the crew, without he could not represent an independent or for- hope of recovery or intention on their part eign nation; for if he sat in Congress as the to return. Cromwell v. The Island City, 66 deputy from any state it must be one having U. S. (1 Black) 121, 128, 17 L. Ed. 70; Rowe v. a political connection with the confederacy; The Brig (U. S.) 20 Fed. Cas. 1281, 1282; if as a diplomatic agent, it could not be as Cromwell v. The Island City (U. S.) 6 Fed. an agent of an independent nation, for all Cas. 839, 860; Tyson v. Prior (U. S.) 24 Fed. such have an unquestioned right to send Cas. 489; The Aquila, 1 C. Rob. 37, 41; such agents when and where they please. The Ann L. Lockwood (U. S.) 37 Fed. 233, Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 237; The B. C. Terry (U. S.) 9 Fed. 920; 1, 38, 8 L. Ed. 25.

The Emulous (U. S.) 8 Fed. Cas. 705, 707.

A temporary abandonment for the purpose DEPUTY TREASURER.

of providing more effectual means of saving

For this Money was deposited in a bank in the it does not constitute a derelict. name of "A., deputy treasurer.” Held, that purpose the abandonment must be final, withthe words “deputy treasurer," in such con- out the intention of returning and resuming nection, had the same import as the word

possession. Lewis v. The Elizabeth and "agent,” and was merely an acknowledgment Jane (U. S.) 15 Fed. Cas. 478, 479. If the by A. that he held the money for some one boat is simply abandoned by the crew temelse, and the person for whom he held the porarily for the purpose of obtaining assist

Crommoney not being divulged, as between the ance and returning, it is no derelict. bank and A., the money belonged to A., and well v. The Island City, 66 U. S. (1 Black) it was not entitled to justify a refusal to 121, 128, 17 L. Ed. 70; Rowe v. The Brig (U. pay A.'s checks on that ground alone. Citi- s.) 20 Fed. Cas. 1281, 1282. zens' Nat. Bank V. Alexander, 14 Atl. 402, In maritime law the abandonment of a 404, 120 Pa. 476. See, also, Patterson v.steamboat by the master to the care and proMarine Nat. Bank, 18 Atl. 632, 130 Pa. 419, tection of the master and crew of another 17 Am. St. Rep. 778.

steamboat, for the purpose of procuring as

sistance and safety, is not a case of derelict. DEPUTY UNITED STATES MAR- Montgomery v. The T. P. Leathers (U. S.) 17 SHALL.

Fed. Cas. 640, 642.
As United States officer. See “United

When a vessel is found at sea deserted,
States Officer."

abandoned by the master, without intention

of returning and resuming the vessel, it is, DERANGE.

in the sense of the law, "derelict," and the

finder who takes possession with the intenThe term "deranged," as applied to per. tion of saving her gains a right of possession, sons, includes all forms of mental unsound. I which he can maintain against the true own

[ocr errors]


The owner does not renounce his right to! As land gained from sea. the property, and this is not presumed to be

Dereliction is land gained from the sea his intention, and the finder does not acquire when the sea shrinks back below the usual the property, but the owner does abandon high-water mark. Linthicum v. Coan, 2 Atl. temporarily his right of possession, which is 826, 827, 828, 64 Md. 439, 54 Am. Rep. 775. transferred to the finder, who becomes bound to preserve the property in good faith, and Dereliction is a rescission of the waters to bring it to a place of safety for the own- of the sea, a navigable river, or other stream, er's use, and he acquires the right to be paid by which land that was before covered with for his services a reasonable and proper com- water is left dry. In such case, if the alterapensation out of the property itself.

The tion takes place suddenly and insensibly, the Bee (U. S.) 3 Fed. Cas. 41, 44.

ownership remains according to former

bounds, or, if it is gradual and imperceptible, A derelict is a wreck which has been the dereliction or dry land belongs to the abandoned by all parties; generally applied riparian owner through whose shore or bank to shipping. Goods cannot be taken and ti- the water has receded. Warren v. Chamtle therein acquired by finding as derelict, bers, 25 Ark. 120, 121, 91 Am. Dec. 538, 4 Am. while they are floating in the water, having Rep. 23. escaped from the custody of the crew of the wrecked steamer, with full knowledge on

Dereliction or reliction is land added to their part, unless they have been absolutely a front tract by the permanent uncovering of abandoned, such goods being still in the con- the waters; the laying bare of the bottom, by structive possession of the owner of the yes- the retirement of the waters, as contradissel, in the same manner as goods in a house tinguished from a filling up of the bottom by which is on fire, and which has not been deposits causing the waters to recede. Derabandoned because of the peril.

United eliction, as used in the English law, meant States v. Stone (U. S.) 8 Fed. 232, 243.

when the sea shrank back below the usual

water mark, and remained there. In those A vessel loaded with a cargo slaves, cases the law is held to be that, if this be by who revolt and throw the crew overboard, little and little, it should go to the owner of is a derelict. Flinn v. The Leander (U. S.) 9 the land adjoining. It is recognized by the Fed. Oas. 275.

Louisiana law as a mode of acquiring prop A bark which has broken from her anch-erty, but the mere temporary subsidence of

the waters occasioned by the seasons, comorage in the arm of the sea, drifted on a rock beach in a heavy storm, made fast to ing in the winter and staying to the spring, trees by the captain and crew, filling with going in the summer and gone in the autumn, water during the night, deserted the next day does not constitute dereliction in the sense by all hands, who took with them the ship's of an addition to the contiguous land, sus

ceptible of private rights as riparian rights. papers, compasses, side lights, and their per- Sapp v. Frazier, 26 South. 378, 380, 51 La. sonal effects, and then goes adrift again some days later, and is found drifting 14 miles Ann. 1718, 72 Am. St. Rep. 493. from her anchorage, with no one on board, is a derelict. The Canada (U. S.) 92 Fed. DERIVE. 196, 198.

In the compact between Virginia and DERELICTION.

Kentucky in reference to lands ceded to

Kentucky, providing that all private rights See "Presumed Dereliction."

and interests of land within the said district,

"derived from the laws of Virginia prior to As abandonment of goods.

such separation,” shall remain valid and seDereliction by the civil law is the volun- cure under the laws of the proposed state, tary abandonment of goods by the owner, and shall be determined by the laws now exwithout the hope or purpose of returning to isting in this state, such phrase “appears to the possession. Jones' Adm'rs v. Munn, 12 have been employed to express the direct and Ga. 469, 473 (citing 1 Bro. Civ. Law, 239; immediate concessions and sales by the Wood's Civ. Law, 156).

state.” Beard v. Smith, 22 Ky. (6 T. B. Mon.)

430, 437. Dereliction or renunciation of property requires both the intention to abandon and In Rev. St. $ 2364, providing that on judgexternal action. Thus the casting overboard ment for divorce the court may divide the of articles in a tempest to lighten the ship estate, both real and personal, of the husis not dereliction, as there is no intention of band, and so much of the estate of the wife abandoning the property in case of salvage, as shall have been "derived from the husnor does the mere intention of abandonment band,” the words “property derived from the constitute dereliction without a throwing husband" refer not only to property directly away or some external act. Livermore v. transferred from him to her, but also such as White, 74 Me. 452, 456, 43 Am. Rep. 600. was substantially derived, mediately or in

[ocr errors][merged small][merged small]
[ocr errors]

mediately, from the husband. Gallagher v. in this statute, the court observes that it is Gallagher, 61 N. W. 1104, 1105, 89 Wis. 461. a canon of construction that every word of

the statute must be given effect, if possible,

and that if words, taken in their technical DEROGATION OF COMMON RIGHT.

sense, would make a statute inoperative in A statute is in derogation of common

whole or in part, they will be taken in their right which imposes cial burdens upon in

popular sense. In view of this rule, it is held dividuals or upon one class of the community that the word “descends” as used in the statnot shared by others. Barber Aspbalt Pav. ute includes estates for life which pass by Co. v. Watt, 26 South. 70, 72, 51 La. Ann. operation of law on the death of the ances

devise, and is not limited to those passing by 1315.

tor intestate. Mitchell v. Blanchard, 47 Atl.

98, 99, 72 Vt. 83. DESCEND.

“Descend," as used in a will providing See "Estate Descended."

that, after the death of testator's children,

the trust created by the will should cease and The words “descend,” inherit," and "in- determine, and the several tracts or parcels heritance,” in the statutes of the state in ref- of land and premises should go and descend, erence to the estates of đecedents, ordinarily freed and discharged from all trusts, to the relate to real estate; but while this is true, respective right heirs of his children in fee it is in the power of the Legislature to give simple, does not express descent in the legal them a different inflection and expand their sense, but devolution by force of the devise. meaning. The words “descend," "inherit,” It is the same as if testator bad said “go and "inheritance,” in their broad meaning, down to the children.” Ballentine v. Wood, are frequently applied to personal property. 9 Atl. 582, 585, 42 N. J. Eq. (15 Stew.) 552. Rountree v. Pursell, 39 N. E. 747, 749, 11 Ind. App. 522.

Testator's will provided “the share of

my property received by J., he may have and As ascend.

use the profits from during his natural life,

and at his death descend to bis children." The word "descend” means ordinarily to Held, that the word "descend" was used in go down, but in the law relating to the devo- the sense of "go" or "belong” to, and at the lution of property rights “descend" may death of J. such children took the estate by mean “ascend,” as “descending in the as- virtue of the will. Tate v. Townsend, 61 cending line.” Rountree v. Pursell, 39 N. E.

Miss. 316, 319. 747, 749, 11 Ind. App. 522.

Testator bequeathed a sum of money, a As go to.

slave, and other chattels to his wife, to hold The word “descend," in a will devising during her natural life, and at her death to testator's property to certain persons, but, if descend to her granddaughter. Heid, that he left no child or children, then directing the term “descend" thus used in the will was that the property was to descend to others, legatory, and meant that the granddaughter was construed to have been used in the took a vested remainder, and not a continsense of the words "go to.” Brooks v. Kip, gent interest as successor to the wife. Tim35 Atl. 638, 660, 54 N. J. Eq. 462; Stratton v.

berlake v. Parisb's Ex'r, 35 Ky. (5 Dana) 345. McKinne (Tenn.) 62 S. W. 636, 610; Borgner

v. Brown, 33 N. E. 92, 94, 133 Ind. 391.

As pass by operation of law.
"Descend," as used in an antenuptial
contract providing that certain property shall

The word "descend" ordinarily defines remain in the wife, but if there be issue of the vesting of the estate by operation of law the marriage then said property shall de in the heirs immediately upon the death of scend to such child or children, share and the ancestor. Potts v. Kline, 34 Atl. 191, 192.

174 Pa. 513.
share alike, according to the law of the state
of Tennessee. is not used in its technical

Testator's will, after devising the resisense, but means shall “go to” or “be vested" due of his real estate to his daughters, and in such child or children, share and share the survivors of them, until death or maralike, or equally, as is provided in the laws riage, provided as follows: “After the marof Tennessee in cases of descent or distri- riage or death of my surviving daughters, the bution. Aydlett v. Swope (Tenn.) 17 S. W. estate berein devised shall descend to those 208, 209.

persons who will then be entitled to take the

same as my heirs." Held, that the word “deAs pass by devise.

scend” denoted the vesting of the estate by V. S. 2613, provides that the probate operation of law in the heirs immediately on court may appoint trustees in cases not oth- the death of the ancestor, and manifested erwise provided for, when the use of prop- the intention of the testator to have been erty, real or personal, descends to a person that, after the particular estates which he for life. In construing the word "descends” i bad given should have failed, the law should

take its course, and his estate go to his mere operation of law, from purchase, which heirs as if he had made no further disposi- may be either devise or grant. In the fortion. Dove v. Torr, 128 Mass. 38, 40 (citing mer case the person is said to take by deBullock v. Downes, 9 H. L. Cas. 1; Morti- scent or as heir, while a grantee or devisee mer v. Slater, 7 Ch. Div. 322; Mortimore v. is said to take by purchase or as a purchasMortimore, 4 App. Cas. 448).

er.” Abbott, Law Dict. The above defini.

tions of the word "descent" clearly estal“Descend,” as used in a will giving prop-lish that when the statute declares that in erty to a certain person to descend to his fe male children and grandchildren and to their case the adopted child dies without issue the heirs forever, does not operate to work a "de property shall descend, not to his next of scent" in the legal strict sense of the term. kin, but to that of the adopting parent, it as inheritance is through operation of law. intestate it should so descend, for otherwise

means that in case the adopted child dies Its employment, therefore, no other meaning it would pass by devise, and could not debeing apparent, is to be taken as indicating scend. Spangenberg v. Guiney, 3 Ohio Dec. the desire of testator that his property shall follow the same channel into which the law 163, 165, 2 Ohio N. P. 39. would direct it. The devise can only mean

As a word of inheritance. that the grandchildren only whose parents are dead shall take with the living children, "Descend,” as used in a clause of the for only in case of the death of its parent will declaring that one-half of the estate can the grandchild become the beir at law of shall descend to E.'s heirs and assigns, and its grandfather, and take from him by de- the other half to descend to G.'s heirs and scent. Property cannot descend from a assigns, must be construed as a word of ingrandparent to a grandchild whose parents heritance, vesting in the first taker as a fee, are living. Halstead v. Hall, 60 Md. 209, 211. since, if it be construed that E. and G. were

simply to take life estates, there would A will directing that, after a certain be nothing to descend to their heirs. Also time fixed, the estate devised should "de the use of the word "assigns” in this conscend” to those persons who may then be nection lends force to this construction, for entitled to take the same as the testator's it contemplates that E. and G. might have heirs, meant that at that stage the law the right to transfer the property. In re should take its course and the estate go to Browning, 16 Atl. 717, 718, 16 R. 1. 441, 3 the testator's heirs as if he had made no fur- L. R. A. 209. ther disposition, since the word "descend" ordinarily denotes the vesting of the estate of

A will directed that deceased's executhe deceased person, by operation of law, im- tor invest a sum of money in real estate for mediately on the death of the ancestor. M. W., and that the title to the same be Wood v. Bullard, 25 N. E. 67, 71, 151 Mass. made to her, with the restriction that she 324, 7 L. R. A. 304.

should not have power to sell or incumber “Descend,” as used in a will devising or occupy the same, and on ber death it

the same in any way, but might rent, use, testator's real estate, and bequeathing his

was to “descend to her heirs”; and further personal property in trust for his wife for provided that an annuity should be given life, and directing a division among bis to one of the brothers of the testator until heirs on her death, except the share which July 1, 1882, or to his wife in the event would by law descend to his daughter, is to of his death, and directed that at the time be construed to mean to pass or to be trans- named $5,000 should be invested for their ferred. Childs v. Russell, 52 Mass. (11 benefit, and after their death “the said $3,Metc.) 16, 21.

000 is to be paid to the children of my said “Descend,” as used in the expression brother Henry, share and share alike. Ir in a will providing that at “her death the my said brother H. and bis wife both die same to descend to such of her children as before the 1st day of July, 1882, the said were then living," refers to the course the $5,000 is not to be paid until the said ist property would take by descent. Harrington day of July, 1882, at which time, if they v. Gibson, 60 S. W. 915, 916, 109 Ky. 752. are both dead, the said children shall be en

The word “descend” has a well-defined titled to the same.” Held that, construing meaning in law, as the following detinitions both clauses of the will together, "descend of the word "descent” will show: “Descent to her heirs,” used in the clause first quoted. is what takes place when land, or some in- is not employed by way of words of purterest in land or other realty, belonging to chase, or to express a devise, but merely to a person, passes on his death, intestate, to express the idea that the testator expected some one related to him. Descent is op

and intended his bounty would, upon M. posed to what takes place when land, on

W.'s death, pass by descent to her heirs.

Wedekind v. Hallenberg, 10 S. W. 369, 371, the death of a person, passes to someone

88 Ky. 114. else by virtue of a gift or limitation to him as persona designata.” Rap. & L. Law Dict. The word "descend” is inapplicable to Again: “Descent is frequently used to dis- any estate less than a fee. Johnson v. Mortinguish the vesting of title in any one, by ton, 10 Pa. (10 Barry 245, 248

As a word of purchase.

If any, means all legitimate children, whether The word "descend,” as used in a deed they were born in wedlock, or were made conveying property to another for and dur- legitimate by subsequent marriage by their ing her natural life, and to descend to her parents and recognition according to statute. heirs in equal portions, means to pass from Jackson's Adm’rs v. Moore, 38 Ky. (8 Dana) the grantee to her heirs, and is of the same 170, 173. effect as if the deed read “to her during her

Within the provision of the Code that the natural life, and to her heirs." Taney v. estate of an illegitimate dying intestate withFahnley, 25 N. E. 882, 126 Ind. 88.

out children, husband or wife, or mother, “Descend” has been held to mean the shall go equally to his brothers and sisters same as "to go to,” and, as used in the by his mother, or descendants of such brothbabendum clause of a deed providing that ers and sisters, the words “descendants of the land shall descend to w. on the death such brothers and sisters” mean legitimate of the first takers, is a word of purchase and descendants only, and will not include illenot of limitation, and does not show that gitimate ones. Giles v. Wilhoit (Tenn.) 48 it was the intention to vest the first takers S. W. 268, 270. with the fee, in the face of the express The word “descendants," in a will prostatement that they are to take only a life viding that, if a certain one of testator's sons estate. Doren v. Gillum, 35 N. E. 1101, 1102, should leave no other issue or descendants 136 Ind. 134.

than one son then living, the former's power Land was devised to the testa trix's two of disposition sbould be limited to a certain nephews in common during life, with the sum, is not used as a word of purchase, the provision that immediately after their de- testator evidently having imagined that the cease the same should descend to their child word “issue" might be mistakenly read for dren in equal shares, or their heirs, yet so "children,” and be therefore followed it in that the children of each only divide the the disjunctive"or descendants." Appeal share that belonged to their father. Held, of Barry (Pa.) 10 Atl. 126, 127. that the use of the term “descend" in such

The use in the Penal Code of any word devise did not indicate an intention on the expressive of relationship, state, condition, part of the testatrix that the children should office, or trust of any person, as the “parent," take as heirs of their parents, and not by "child,” “ascendant," "descendant,” “minor," way of remainder, especially when taken "infant,” “ward," "guardian," or the like, in connection with the preceding clause, by or of the relative pronouns “he” or “they," which a life estate was given to two other in reference thereto, includes both males nephews, it being provided therein that on and females. Pen. Code Tex. 1895, art. 22. the death of either life tenant the undivided half belonging to the one so dying should As children. go to and be enjoyed in equal shares by his children, or to their heirs. Appeal of Keim,

The word “descendant," as used with 17 Atl. 463, 464, 125 Pa. 480.

reference to persons taking the estate of a

deceased person, has not the same precise In a clause of a will providing that the technical signification as the words "heirs of property herein devised to my several chil- the body," and may be and is often used dren is to remain their own during their by testators as synonymous with “children." natural lives, and to descend to their bodily Schmaunz v. Goss, 132 Mass. 141, 144. heirs, if any, the word “descend” is used in the sense of "going to,” and will not be un- As grandchildren. derstood to vest the fee in the children, as By a will testator's property was devised rendering the words “bodily heirs" words of to his brothers and sisters surviving at his limitation. Stratton v. McKinnie (Tenn.) 62 death, and the descendants of such as should S. W. 636, 640.

then be dead, such descendants to take the Descend,” as used in the provisions of

share or portion which would have otherwise a will as follows: "The above named real belonged to such deceased parent. At the estate, one-third to descend to his wife ip time of his death six of his brothers and living, the remainder to go to my children"

sisters were dead, and had left children and

The broad import of the means "go,” and is not a limitation on the

grandchildren. fee devised. Borguer v. Brown, 33 N. E. term "descendants” is sometimes narrowed

where there is ground for judging that it 92, 91, 133 Ind. 391.

was intended in a restricted sense. Thus,

the word “issue,” which is coextensive with DESCENDANT.

"descendants,” and includes every degree, See "Immediate Descendants or Issue"; | has been restricted to the sense of "children." "Lineal Descendants."

In this case we may reasonably conclude the

testa tor intended to regard each deceased “Descendants,” as used in the act of sister and brother as a stock of descent, and, 1765 directing that an intestate's estate shall while using the word "descendants” in the descend to his children or their descendants, sense of children and the descendants of chil.

« SebelumnyaLanjutkan »