Gambar halaman
PDF
ePub

The use of the word "deserving" in a might be applied. It is not suicient to conbequest to a trustee, to be used as in his stitute an allegation of defendant's criminal judgment he may think best in aid of the intent. Commonwealth v. Morse, 2 Mass. deserving, aged native-born in a certain town 128, 131. needing such aid, does not render the will indefinite, since the word must be construed

In an accident insurance policy provid. in connection with the phrase “needing aid," ing that the insurance should not extend to and coupled with that phrase, and donation any case of death or personal injury, unless

the claimant should establish by direct and of money, it means practically the same thing as the “aged poor.” Foy v. Howe, 69 not the result of design, either on the part

positive truth that the death or injury was Pac. 423, 424, 136 Cal. 599.

of the deceased or of any other person, the

term "design" means the design that intendDESIGN.

ed the actual result accomplished, and not

the design of the act itself, which act resultSee "Formed Design"; "Premeditated ed in the killing of one contrary to the deDesign."

sign of the act. The design mentioned in the Designed for exportation, see “Export, policy must be considered a design on the Exportation."

part of one killing the insured to kill such in

sured, and if at the time he fired the pistol The word "design" contemplates the shot he did not intend to kill insured, or did causative act of omission, done or suffered not know that the man he was shooting was willfully or knowingly. The Strathdon (U. the insured, death was not the result of deS.) 89 Fed. 374, 378.

sign. Utter v. Travelers' Ins. Co., 32 N. W.

812, 813, 65 Mich. 545, 8 Am. St. Rep. 913. Absence of overpowering passion implied.

Where a partnership contract provided The expressions “premeditation,” “delib- that one of the partners might purchase, sell, eration,” “design,” “determination,” distinct- and charter the vessels "designed for the ly formed in the mind, used in the charge of a trade," the loss or profit to be charged or prosecution for murder, all imply the ab- credited to the general account, a ship which sence of overpowering passion. State v. Ah was built for the trade, but was sold immeMook, 12 Nev. 369, 381.

diately upon being launched, without actual

ly having engaged in the trade, was within As designate.

the terms of the contract, and the profits of 17 Stat. 599, providing that no article or

such sale were partnership profits. Foster thing "designed or intended for the preven

v. Goddard (U. S.) 9 Fed. Cas. 534, 542. tion of conception" shall be carried in the The words "designed to distinguish such mail, should not be construed “as intended to ballots,” in Pol. Code, $8 1206, 1207, providing describe the intent, which must be an ele- that when any ballot bears upon it any imment of the crime against the United States, pression, device, color, or thing designed to but simply as descriptive of the article made distinguish such ballot from other ballots contraband, and the phrase must be under- it shall be rejected, operate to require the stood to indicate as contraband in the mail impression, device, color, or thing to be exany article or thing designed in a manner pressly for the purpose of marking the ballot; calculated to secure its use by one for the and therefore the statute does not authorize purpose of preventing conception. The same the rejection of a ballot for discoloration, not conclusion may be arrived at by giving the designed, but resulting from the use of ink word 'designed,' as used in this statute, the by the elector in scratching his ballot. Wy: signification of designated,' which is one of man v. Lemon, 51 Cal. 273, 274. the ordinary meanings of the word." United States v. Bott (U. S.) 24 Fed. Cas. 1204, 1205.

"Designed to mislead the voter," as used

in Act 1875, p. 51, § 1, providing that the capAs intend.

tion or head lines on ballots shall not in any

manner be "designed to mislead the voter" "Design” is a purpose or intention, combined with plan, or implying a plan in the not truly indicating the political character or

as to the name or names thereunder, means mind. State v. Grant, 53 N. W. 120, 121, Iowa, 216; Ernest v. State, 20 Fla. 383, 388; party affiliations of the persons to be voted Hogan v. State, 36 Wis. 226, 244.

for, or representing by the words used in the

caption that the ballot is the ticket of one In an indictment charging that the de party when in truth and in fact the persons fendant fraudulently and deceitfully kept in whose names are contained in the body of the bis possession six quires of paper, which was ballot represent another and different par a material devised, adopted, and designed by ty. Where the caption of ballots contain the him for forging and making false counterfeit word “Republican," "Independent," notes in imitation of those issued by banks “Greenback," it cannot be said as a matter and banking companies, the term "designed" of law that the ballots were designed to miswas intended to point out the particular pur- lead the voter. Turner v. Drake, 71 Mo. 285, pose to which the instrument or material 287.

or

Negligence.

fully; that is, of purpose, with the intent A policy providing that the insurer that the act by which the life of the party would be liable for any loss by fire originat- is taken should have that effect deliberately; ing in any cause except the "design in the that is, with cool purpose and with premediinsured,” does not include a loss which was tation; that is, the design must be formed produced by the mere negligence or laches of before the act by which the death is prothe assured in leaving the property exposed duced is performed. Dale v. State, 18 Tenn. to the peril, where he did not co-operate, di- (10 Yerg.) 551, 552. rectly or indirectly, with those who produced the loss. Design imports plan, scheme, in

As plan of building. tention carried into effect; and therefore a In a by-law of a land company that no loss, to be by the design of the assured, must land should be sold or leased without a be by incitement, connivance, or co-operation pledge to build speedily, design of buildings of the assured, directly or indirectly, with to be approved by directors, "design” was not the persons who were the agents in the act; used in its strictly technical sense, such as and the fact that the insured was negligent architects might understand it, but it only in leaving the premises derelict, and thus refers to the general plan, and not to the deexposed them to the wanton or criminal acts tails of construction of the building. Devries of intruders, was not sufficient to make the v. Cone, 34 Atl. 822, 823, 82 Md. 186. loss one by the design of the assured, since the negligence of the assured cannot be the Where land is conveyed by a land comapproximate cause of the loss where he had pany, with the provision that buildings to no co-operation, knowledge, or part in the be erected shall be according to a “design” act causing the loss. Catlin v. Springfield approved by the directors of the land comFire Ins. Co. (U. S.) 5 Fed. Cas. 310, 314. pany, on the destruction of the building so

built the grantee would have a right to reIn a policy insuring against loss by fire build according to the original design; that not caused by the design of the insured, “de is, without any such changes as would subsign” does not include negligence. There are stantially affect the general plan approved cases of gross neglect which are in law deem

by the directors. Peabody Heights Co. v. ed equivalent to a fraudulent purpose or de Willson, 82 Md. 186, 32 Atl. 386, 389, 36 L. sign, founded on the consideration of doing R. A. 393. nothing when the slightest care on the part of the insured would prevent a great injury. Judge Shaw supposes a case where the in- DESIGN (In Copyright). sured in his own house sees the burning coals in the fireplace roll down on his wooden floor,

See “Improved Design"; "Novel De

sign”; “Useful Design.” and does not brush them up. This would be nonfeasance, and evidence of a culpable reck

A "design,” in the view of the patent lessness and indifference to the rights of oth- law, is that characteristic of a physical subers.. And where a husband of a wife admit- stance which by means of lines, images, conted to be insane is the owner of buildings in- figuration, and the like, taken as a whole, sured by the defendants, and the care of the makes an impression, through the eye, upon wife is intrusted to the husband, and she the mind of the observer. The essence of a burns the buildings while thus insane, the design resides, not in the elements individualinsurer is liable for the loss where there is no such negligence shown on the part of the ly, nor in their method of arrangement, but

in the tout ensemblemin that indefinable husband as will evince a corrupt design or a

whole that awakens some sensation in the fraudulent purpose on his part. Gove v.

observer's mind. Impressions thus imparted Farmers' Mut. Fire Ins. Co., 48 N. H. 41, 43, may be complex or simple; in one a mingled 97 Am. Dec. 572, 2 Am. Rep. 168.

impression of gracefulness and strength, in Premeditation implied.

another the impression of strength alone.

But whatever the impression, there 18 at“Design"

"intent," and both tached in the mind of the observer, to the words essentially imply premeditation. Pe

object observed, a sense of uniqueness and rugi v. State, 80 N. W. 593, 597, 104 Wis. 230, character. Pelouze Scale & Mfg. Co. v. 76 Am. St. Rep. 865; Ernest v. State, 20 Fla. American Cutlery Co. (U. S.) 102 Fed. 916, 383, 388; Hogan v. State, 36 Wis. 226, 244.

918, 43 C. C. A. 52. The definitions of “murder in the third

The word "design,” as used in federal degree" and of “manslaughter" use the words "without design to effect death," thus copyright act as a term of art, is used in

its popular acceptation, meaning the giving positively excluding such a design, and a de- of a visible form to the conceptions of the sign so excluded is necessarily the premedi- mind or to the invention; in other words, it tated design of murder in the first degree. is that fac simile or working out of the ideas Hogan v. state, 36 Wis. 226, 244.

so that they may be comprehended by the The design necessary to constitute mur senses. Binns v. Woodruff (U. S.) 3 Fed. der in the first degree is a design to kill will. Cas. 421, 424.

means

"Designs," as used in Rev. St. § 4929, repress” or “declare,” and it was evidently inlating to copyrights for patterns for designs, tended that the jury should expressly state fall in line with mechanical patents, and re the degree of murder in the verdict so that quire the exercise of the inventive faculty. nothing should be left to implication; and Henderson v. Tompkins (U. S.) 60 Fed. 758, a verdict of guilty as charged in the indict764 (citing Smith v. Whitman Saddle Co., 148 ment, under an indictment charging grand U. S. 674, 13 Sup. Ct 768, 37 L. Ed. 606). larceny, was insufficient where the statute

divided larceny into two degrees, defining DESIGNEDLY.

each. McLane v. Territory (Ariz.) 71 Pac.

938, 939. If it be sufficient for the verdict In an indictment for obtaining goods by to designate the degree of the crime only by false pretenses, the word “knowingly,” in reference to the indictment, it would be connection with the word "falsely,” by which equally good, in such case, siinply to find the it is immediately followed, is sufficiently com- defendant guilty, without reference to the prehensive without using also the word “de- indictment. People v. Campbell, 40 Cal. 129, signedly." The pretense could not be “know- 139. ingly" false without at the same time being "designedly” false. The word "knowingly". As mark or point out. is at least the equivalent of the words “de

In a statute which provided that on prosignedly" and "unlawfully," and therefore, the latter being sufficient without the forceedings for the laying out of a road, after mer, the former must be sufficient without the court had appointed surveyors and fixed

a time of their meeting, at least two of the the latter. State v. Halida, 28 W. Va. 499, applicants for the road should sign and set 504.

up notices designating the time or places from

and to which the road is to be laid out, "desDESIGNATE.

ignate” meant to point out or mark by some

particular sign or mark. State V. Green, See "To Be Designated.”

18 N. J. Law (3 Har.) 179, 181. A city charter authorizing the taxation Rev. St. 1875, p. 214, § 3, provides for of such property as the city council may the appointment of a committee to locate “designate" does not require a specific desig- and describe all natural oyster beds in a nation of each particular class and kind of certain town, which shall be designated by property to be taxed, but a designation of such committee, and their report be recorded, "property of any kind subject to taxation etc. Held, that the word "designated,” as under the laws of the commonwealth" is a there used, is to be taken as referring merely sufficient designation. Covington Gaslight to the act of the commissioners authorized Co. v. City of Covington, 84 Ky. 94, 95, 99. to determine and inform applicants what.

grounds they may occupy, and that before The word “designate,” as used in Act the applicant can require any right to the July 2, 1839, requiring that each ticket voted exclusive occupation of the ground it is necesfor at an election should designate on the sary for him to mark and stake out the outside the office or offices, and on the inside place designated. White v. Petty, 18 Atl. the name of the person voted for to all such 253, 57 Conn. 576. office or offices, means to show, or point out; to indicate by description, or by something "Designate," according to the dictionknown or determinate. Any clear description ary, means to call by a distinctive title; to of the offices, about which there could be no point out by distinguishing from others; and mistake or apprehension, would be sufficient. is so used in Act 24th Gen. Assem., c. 33, § In re Election of Prothonotary of Luzerne 14, providing that the names of all candidates County, 3 Pa. Law J. 155, 157.

of any political party shall be placed under

the title of such party as designated by them As appoint.

in their certificates of nomination. Lowry v. The word "designate," when used by Davis, 101 Iowa, 236, 239, 70 N. W. 190. the appointing power in making an appointment to office, is equivalent to the word “ap

As select. point.” People v. Fitzsimmons, 68 N. Y. 514, "Designate," as used in the Mexican law 519.

of 1825, providing that where projects for

new settlements, in which one or more perAs declare or express.

sons offers to bring at their expense 100 or The word “designate," as used in the more families, shall be presented to the govstatute providing that the jury sball designate ernment, and if found conformable with this by their verdict whether it be murder in the law it shall be admitted, and the government first or second degree, does not imply that it shall immediately "designate" to the conwill be sufficient for the Jury to intimate or tractors the land where they are to establish give some vague hint as to the degree of themselves, "does not mean that the governmurder of which the defendant is found ment will grant them the land, but simply guilty, but is equivalent to the word "ex- that it will select and designate the place where a colony may be settled." Interstate , road with all desirable appendages, and for Land Co. v. Maxwell Land Grant Co., 11 Sup. putting and keeping the same in repair, to Ct. 656, 661, 139 U. S. 569, 35 L Ed. 278. enter upon, take, and hold all real estate

Act March 11, 1880 (Supp. Revision, 929), and materials necessary for that purpose, the $ 86, provides that school trustees shall give word “desirable" should be construed to mead

"necessary." notice of the annual meeting, and therein

Prather V. Jeffersonville, M. state the object of the meeting, and the & I. R. Co., 52 Ind. 16, 37. amount of money desired to be raised, and Under the charter of a corporation organthat no greater sum than the amount so des- ized for the manufacture and dealing in lumignated can be raised. Held, that the word ber and other articles, and providing that the “designated,” as so used, means to show, to company may acquire and transfer, purchase point out, to specify, and does not mean to and hold, sell or exchange, any real estate select or determine upon. State v. Trustees

or other property that may be deemed “deof School Dist. No. 10, 18 A. 083, 184, 52 N. sirable" in the transaction of its business, J. Law (23 Vroom) 104.

the corporation has power to purchase its

own stock. Iowa Lumber Co. v. Foster, 49 DESIGNATION.

Iowa, 25, 28, 31 Am. Rep. 140. The term "designation," as used in the by-laws of a mutual benefit society declar

DESIRE. ing that, if no designation of a beneficiary has been made, the amount which the insured

A desire, either natural or otherwise, 1s is entitled to receive shall be paid to his not a consideration for a contract. It may heirs, means and refers to the express act be a motive for a party entering into a conof the member specifying and naming some tract, but we take it that it does not constiparticular person as his beneficiary. Hanson V. Minnesota Scandanavian Relief Ass'n, 60 and a wish and desire to help are always

tute a legal consideration. A friendly feeling N. W. 1091, 1093, 59 Minn. 123.

necessarily present in the mind of an accomThe meaning of "designation," as found modation guarantor. Greer Machinery Co. in the dictionary, includes “appellation.” It, v. Stains (Tenn.) 59 S. W. 692, 699. according to Webster, is that wbich desig. nates distinctive title; appellation. Accord

Under a statute authorizing an informaing to Worcester, its meaning is “that which tion in quo warranto by any person desiring serves to distinguish.” As used in a statute to prosecute the same is meant any person requiring ballots to be on plain white paper, who has an interest to be affected, and the clear and plain cut, without any ornaments, words do not give a private relator the writ “designation," mutilation, symbol, or mark in a case of private right involving no indiof any kind whatsoever, except the name or vidual grievance. Commonwealth v. Cluley, names of the person or persons voted for 56 Pa. (6 P. F. Smith) 270, 272. and the office for which such persons are intended to be chosen, it is, on account of in the nature of

The statute providing that informations its associate words, to be construed to intend hibited at the relation of any person desiring

quo warranto may be exonly designations in the nature of ornamenta- to prosecute the same means any person havtions, mutilations, symbols, or marks, as dis- ing an interest in the subject of the prosecutinct from words or writings, and hence bal- tion; and one claiming the office of a school lots having on them, in the body thereof, the director, but who is not shown to be a qualiwords "National Republican Ticket,” “Free Suffrage Ticket,” are not illegal or contrary tion to file an information in the nature of

fied elector of the district, is not in a posito the purposes of the statute.

State v. Saxon, 12 South. 218, 225, 30 Fla. 668, 18 L. quo warranto against the incumbent. State

v. Boal, 46 Mo. 528, 531. R. A. 721, 32 Am. St. Rep. 46.

In Civ. Code, & 2466, requiring every firm As word of intention. doing business under a fictitious name or

Either of the words "wish," "desire,” "designation, not showing the names of the command," or "direct,” is an apt word to be partners,” to file and publish a certificate used in a will to show testator's intent to showing the full names and residences of its

make a will. Barney v. Hayes, 29 Pac. 282, members, "designation” is not used in opposi- 284, 11 Mont. 571, 28 Am. St. Rep. 495. tion or contrast between the phrase "fictitious name"; the former is supplementary "Desire," as used in a will declaring, “It to the latter. Pendleton v. Cline, 24 Pac. is my will and desire,” etc., is the equivalent 659, 660, 85 Cal. 142.

of the word "wish,” and indicates an inten

tion of the testator to dispose of the property DESIRABLE.

to which the wish refers; the word "will" be.

ing stronger in its meaning than "desire." In a railroad charter authorizing the com- McMurry v. Stanley, 6 S. W. 412, 414, 69 Tex pany, for the purpose of constructing its 227.

As positive direction.

the words “I will” or “I order and direct" In a will reciting that “I desire that at had been used. Oyster v. Knull, 20 Atl. 624, such time as may be agreeable and mutually 137 Pa. 448, 21 Am. St. Rep. 890. consented to by my wife and my son, the The words "wish and desire,” in a will homestead may be sold and one purchased in in which testator suggested that it was his lieu thereof by them at a cost not exceeding wish and desire that all his real estate should $8,000, and any excess in price must be in- be divided between his children, was con vested and added to my estate," the word strued to be not merely the expression of “desire” does not bear a sense merely horta- desire on the part of the testator, but to be tory or precatory, but is equivalent to a posi- operative words sufficient to pass the proptive direction. Stewart v. Stewart, 47 Atl. erty. Brasher v. Marsh, 15 Ohio St. 103, 111. 633, 635, 61 N. J. Eq. 25.

Testatrix directed her residuary estate "Desire,” as used in a will providing that to be divided into three equal parts, one of "on the death of my wife I desire that one which she devised absolutely to her daughhalf of the property,” etc., does not import a ter. In a codicil to her will testatrix detrust or charge or a command. In re Marti's clared her "desire that one-half of the share Estate, 61 Pac. 964, 965, 132 Cal. 666.

of the property inherited from me by my In a will in which the testator desires daughter be placed in trust,” designating the

trustee. Held, that the word "desire," as bis trustees to apply the residue of his estate used by the testatrix in the codicil, was not to such of a certain class of charitable institutions as the trustees should deem worthy entreaty addressed to the legatee or devisee,

a word of mere request, recommendation, or thereof, "desire” should be construed as a but was an order, direction, or command adcommand in a polite form. Weber v. Bryant, dressed to the executors of the will. Wood 37 N. E. 203, 161 Mass. 400.

v. Camden Safe Deposit & Trust Co., 14 Atl. The words “I desire,” in a will in which 885, 886, 44 N. J. Eq. (17 Stew.) 460. the testator said, “I desire that all my estate shall be sold and the proceeds invested in As creating a trust. first bonds and mortgages,” are the equiva- In a will where testator makes an absolent of the words “I will," and amounts to a lute gift of property, saying that he desires direction to sell. Appeal of City of Philadel. it to be used in a certain way, the word “dephia, 4 Atl. 4, 5, 112 Pa. 470.

sire" is sufficient to raise a trust where the The word “desire,” when used in a will, certain. Major v. Herndon, 78 Ky. 123, 128;

subject and object of the trust are sufficiently does not necessarily imply a command, but is Maught v. Getzendanner, 5 Atl. 471, 472, 65 dependent on the language of the will, and, Md. 527, 57 Am. Rep. 352; Lines v. Darden, a will attempting to dispose of all real estate, 5 Fla. 51, 72; Curd v. Field, 103 Ky. 293, 45 will be held mandatory. Meehan v. Brennan, S. W. 92; Riker v. Leo, 21 N. E. 719, 720, 45 N. Y. Supp. 57, 58, 16 App. Div. 395.

115 N. Y. 93 (citing 1 Wm. Ex'rs, 88; VanTestator devised to his wife all his es- dyck v. Van Beuren, 1 Caines, 84); Cockrill tate, real, personal, and mixed, to her sole v. Armstrong, 31 Ark. 580, 589. and separate use, behoof, and control forever, but in a subsequent item provided that it was desired his three sons, in case any of his

Where a testator's will recited that he also his "desire and wish,” after his wife's daughters should be inclined to purchase of death, that his house and lot should go to his them certain land bequeathed to them, should daughter for her sole and separate use. Held, that while the words "wish and desire" let such daughters have it at the same price

they had paid for it, the word "desire" raised were sometimes considered to be precatory

a trust. Vandyck v. Van Beuren (N. Y.) 1 words, merely, in wills, and not mandatory,

Caines, 84, 89. as where they are used as expressing a desire for an act to be done by some person or per

As wish. sons named, no such presumption or construction obtains when the words are used to ex

In Act March 7, 1887 (St. 1887, p. 46) $ press the intention and will of the testator, 8, reciting that it is “desired and required as in the devise qúoted, in which case such that all growers and manufacturers, traders, words are to be treated as mandatory; and handlers or bottlers of California wine, when hence the testator intended to give his wife selling or putting it up for sale or when shiponly a life estate in the house and the lot, ping it to parties sold, shall plainly stencil, with remainder to the daughter. Taylor v.

brand or have printed where it may be easily Martin (Pa.) 8 Atl. 920, 922.

seen, 'pure California wine,' and his name or

the firm's name both on the label or bottle or In a will in which testator gave a farm package," "desired and required” should be to a certain person for his support, and then construed as intended to express rather a legdeclared that, if such person should be spared islative wish and permission than a mandate. to have family, “I desire" such estate to go to As words of legislative command, they are the use of his children, the expression is not singularly inappropriate and inconsistent. merely precatory, but is as mandatory as if The word "desired” cannot be ignored in the

« SebelumnyaLanjutkan »