Gambar halaman
PDF
ePub
[ocr errors]

The use of the word "deserving" in a bequest to a trustee, to be used as in his judgment he may think best in aid of the deserving, aged native-born in a certain town needing such aid, does not render the will indefinite, since the word must be construed

in connection with the phrase "needing aid," and coupled with that phrase, and donation of money, it means practically the same thing as the "aged poor." Fay v. Howe, 69

Pac. 423, 424, 136 Cal. 599.

DESIGN.

might be applied. It is not sufficient to constitute an allegation of defendant's criminal intent. Commonwealth v. Morse, 2 Mass. 128, 131.

In an accident insurance policy provid

ing that the insurance should not extend to any case of death or personal injury, unless the claimant should establish by direct and

positive truth that the death or injury was

not the result of design, either on the part
of the deceased or of any other person, the
term "design" means the design that intend-
ed the actual result accomplished, and not
the design of the act itself, which act result-

See "Formed Design"; "Premeditated ed in the killing of one contrary to the de-
Design."

sign of the act. The design mentioned in the

Designed for exportation, see "Export- policy must be considered a design on the
Exportation."

The word "design" contemplates the causative act of omission, done or suffered willfully or knowingly. The Strathdon (U. S.) 89 Fed. 374, 378.

Absence of overpowering passion implied.

The expressions "premeditation," "deliberation," "design," "determination," distinctly formed in the mind, used in the charge of a prosecution for murder, all imply the absence of overpowering passion. State v. Ah Mook, 12 Nev. 369, 381.

As designate.

17 Stat. 599, providing that no article or thing "designed or intended for the prevention of conception" shall be carried in the mail, should not be construed "as intended to describe the intent, which must be an element of the crime against the United States, but simply as descriptive of the article made contraband, and the phrase must be understood to indicate as contraband in the mail any article or thing designed in a manner calculated to secure its use by one for the purpose of preventing conception. The same conclusion may be arrived at by giving the word 'designed,' as used in this statute, the signification of 'designated,' which is one of the ordinary meanings of the word." United States v. Bott (U. S.) 24 Fed. Cas. 1204, 1205.

As intend.

"Design" is a purpose or intention, combined with plan, or implying a plan in the mind. State v. Grant, 53 N. W. 120, 121, 86 Iowa, 216; Ernest v. State, 20 Fla. 383, 388; Hogan v. State, 36 Wis. 226, 244.

In an indictment charging that the de fendant fraudulently and deceitfully kept in his possession six quires of paper, which was a material devised, adopted, and designed by him for forging and making false counterfeit notes in imitation of those issued by banks and banking companies, the term "designed" was intended to point out the particular purpose to which the instrument or material

part of one killing the insured to kill such insured, and if at the time he fired the pistol shot he did not intend to kill insured, or did not know that the man he was shooting was the insured, death was not the result of design. Utter v. Travelers' Ins. Co., 32 N. W. 812, 813, 65 Mich. 545, 8 Am. St. Rep. 913.

Where a partnership contract provided that one of the partners might purchase, sell, and charter the vessels "designed for the trade," the loss or profit to be charged or credited to the general account, a ship which was built for the trade, but was sold immediately upon being launched, without actually having engaged in the trade, was within the terms of the contract, and the profits of such sale were partnership profits. Foster v. Goddard (U. S.) 9 Fed. Cas. 534, 542.

The words "designed to distinguish such ballots," in Pol. Code, §§ 1206, 1207, providing that when any ballot bears upon it any impression, device, color, or thing designed to distinguish such ballot from other ballots it shall be rejected, operate to require the impression, device, color, or thing to be expressly for the purpose of marking the ballot; and therefore the statute does not authorize the rejection of a ballot for discoloration, not designed, but resulting from the use of ink by the elector in scratching his ballot. Wy man v. Lemon, 51 Cal. 273, 274.

"Designed to mislead the voter," as used in Act 1875, p. 51, § 1, providing that the caption or head lines on ballots shall not in any manner be "designed to mislead the voter" as to the name or names thereunder, means

not truly indicating the political character or
party affiliations of the persons to be voted
for, or representing by the words used in the

caption that the ballot is the ticket of one
party when in truth and in fact the persons
whose names are contained in the body of the
ballot represent another and different par
ty. Where the caption of ballots contain the
word "Republican," "Independent,"
"Greenback," it cannot be said as a matter
of law that the ballots were designed to mis-
lead the voter. Turner v. Drake, 71 Mo. 285,
287.

or

Negligence.

A policy providing that the insurer would be liable for any loss by fire originating in any cause except the "design in the insured," does not include a loss which was produced by the mere negligence or laches of the assured in leaving the property exposed to the peril, where he did not co-operate, directly or indirectly, with those who produced the loss. Design imports plan, scheme, intention carried into effect; and therefore a loss, to be by the design of the assured, must be by incitement, connivance, or co-operation of the assured, directly or indirectly, with the persons who were the agents in the act; and the fact that the insured was negligent in leaving the premises derelict, and thus exposed them to the wanton or criminal acts of intruders, was not sufficient to make the loss one by the design of the assured, since the negligence of the assured cannot be the approximate cause of the loss where he had no co-operation, knowledge, or part in the act causing the loss. Catlin v. Springfield Fire Ins. Co. (U. S.) 5 Fed. Cas. 310, 314.

fully; that is, of purpose, with the intent that the act by which the life of the party is taken should have that effect deliberately; that is, with cool purpose and with premeditation; that is, the design must be formed before the act by which the death is produced is performed. Dale v. State, 18 Tenn. (10 Yerg.) 551, 552.

As plan of building.

In a by-law of a land company that no land should be sold or leased without a pledge to build speedily, design of buildings to be approved by directors, "design" was not used in its strictly technical sense, such as architects might understand it, but it only refers to the general plan, and not to the details of construction of the building. Devries v. Cone, 34 Atl. 822, 823, 82 Md. 186.

Where land is conveyed by a land company, with the provision that buildings to be erected shall be according to a "design" approved by the directors of the land company, on the destruction of the building so built the grantee would have a right to rebuild according to the original design; that is, without any such changes as would substantially affect the general plan approved by the directors. Peabody Heights Co. v. Willson, 82 Md. 186, 32 Atl. 386, 389, 36 L. R. A. 393.

DESIGN (In Copyright).

See "Improved Design"; "Novel Design"; "Useful Design."

In a policy insuring against loss by fire not caused by the design of the insured, "de sign" does not include negligence. There are cases of gross neglect which are in law deemed equivalent to a fraudulent purpose or design, founded on the consideration of doing nothing when the slightest care on the part of the insured would prevent a great injury. Judge Shaw supposes a case where the insured in his own house sees the burning coals in the fireplace roll down on his wooden floor, and does not brush them up. This would be nonfeasance, and evidence of a culpable reckA "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, con- ⚫ ted 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 individually, nor in their method of arrangement, but in the tout ensemble-in that indefinable

insurer is liable for the loss where there is no such negligence shown on the part of the husband as will evince a corrupt design or a fraudulent purpose on his part. Gove v. 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.

Premeditation implied.

"Design" means "intent," and both words essentially imply premeditation. Perugi v. State, 80 N. W. 593, 597, 104 Wis. 230, 76 Am. St. Rep. 865; Ernest v. State, 20 Fla. 383, 388; Hogan v. State, 36 Wis. 226, 244.

The definitions of "murder in the third degree" and of "manslaughter" use the words "without design to effect death," thus positively excluding such a design, and a design so excluded is necessarily the premeditated design of murder in the first degree. Hogan v. State, 36 Wis. 226, 244.

The design necessary to constitute murder in the first degree is a design to kill will

whole that awakens some sensation in the observer's mind. Impressions thus imparted

impression of gracefulness and strength, in another the impression of strength alone. But whatever the impression, there is attached in the mind of the observer, to the object observed, a sense of uniqueness and character. Pelouze Scale & Mfg. Co. v. American Cutlery Co. (U. S.) 102 Fed. 916, 918, 43 C. C. A. 52.

The word "design," as used in federal copyright act as a term of art, is used in its popular acceptation, meaning the giving of a visible form to the conceptions of the mind or to the invention; in other words, it is that fac simile or working out of the ideas so that they may be comprehended by the senses. Binns v. Woodruff (U. S.) 3 Fed. Cas. 421, 424.

"Designs," as used in Rev. St. § 4929, re- | press" 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 require the exercise of the inventive faculty. Henderson v. Tompkins (U. S.) 60 Fed. 758, 764 (citing Smith v. Whitman Saddle Co., 148 U. S. 674, 13 Sup. Ct. 768, 37 L. Ed. 606).

DESIGNEDLY.

In an indictment for obtaining goods by false pretenses, the word "knowingly," in connection with the word "falsely," by which it is immediately followed, is sufficiently comprehensive without using also the word "designedly." The pretense could not be "knowingly" false without at the same time being "designedly" false. The word "knowingly" is at least the equivalent of the words "designedly" and "unlawfully," and therefore, the latter being sufficient without the former, the former must be sufficient without

the degree of murder in the verdict so that nothing should be left to implication; and a verdict of guilty as charged in the indictment, under an indictment charging grand larceny, was insufficient where the statute divided larceny into two degrees, defining each. McLane v. Territory (Ariz.) 71 Pac. 938, 939. If it be sufficient for the verdict to designate the degree of the crime only by reference to the indictment, it would be equally good, in such case, simply to find the defendant guilty, without reference to the indictment. People v. Campbell, 40 Cal. 129, 139.

As mark or point out.

In a statute which provided that on proceedings for the laying out of a road, after 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.

DESIGNATE.

See "To Be Designated."

A city charter authorizing the taxation of such property as the city council may "designate" does not require a specific designation of each particular class and kind of property to be taxed, but a designation of "property of any kind subject to taxation under the laws of the commonwealth" is a sufficient designation. Covington Gaslight Co. v. City of Covington, 84 Ky. 94, 95, 99.

The word "designate," as used in Act July 2, 1839, requiring that each ticket voted for at an election should designate on the outside the office or offices, and on the inside the name of the person voted for to fill such office or offices, means to show, or point out; to indicate by description, or by something known or determinate. Any clear description of the offices, about which there could be no mistake or apprehension, would be sufficient. In re Election of Prothonotary of Luzerne County, 3 Pa. Law J. 155, 157.

As appoint.

The word "designate," when used by the appointing power in making an appointment to office, is equivalent to the word "appoint." People v. Fitzsimmons, 68 N. Y. 514, 519.

As declare or express.

The word "designate," as used in the statute providing that the jury shall designate by their verdict whether it be murder in the first or second degree, does not imply that it will be sufficient for the jury to intimate or give some vague hint as to the degree of murder of which the defendant is found guilty, but is equivalent to the word "ex

up notices designating the time or places from and to which the road is to be laid out, "designate" meant to point out or mark by some particular sign or mark. State v. Green, 18 N. J. Law (3 Har.) 179, 181.

Rev. St. 1875, p. 214, § 3, provides for the appointment of a committee to locate and describe all natural oyster beds in a certain town, which shall be designated by such committee, and their report be recorded, etc. Held, that the word "designated," as there used, is to be taken as referring merely to the act of the commissioners authorized to determine and inform applicants what grounds they may occupy, and that before the applicant can require any right to the exclusive occupation of the ground it is necessary for him to mark and stake out the place designated. White v. Petty, 18 Atl. 253, 57 Conn. 576.

"Designate," according to the dictionary, means to call by a distinctive title; to point out by distinguishing from others; and is so used in Act 24th Gen. Assem., c. 33, § 14, providing that the names of all candidates of any political party shall be placed under the title of such party as designated by them in their certificates of nomination. Lowry v. Davis, 101 Iowa, 236, 239, 70 N. W. 190.

As select.

"Designate," as used in the Mexican law of 1825, providing that where projects for new settlements, in which one or more persons offers to bring at their expense 100 or more families, shall be presented to the government, and if found conformable with this law it shall be admitted, and the government shall immediately "designate" to the contractors the land where they are to establish themselves, "does not mean that the government will grant them the land, but simply 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. Ct. 656, 661, 139 U. S. 569, 35 L. Ed. 278.

Act March 11, 1880 (Supp. Revision, 929), 86, provides that school trustees shall give notice of the annual meeting, and therein state the object of the meeting, and the amount of money desired to be raised, and that no greater sum than the amount so designated can be raised. Held, that the word "designated," as so used, means to show, to point out, to specify, and does not mean to select or determine upon. of School Dist. No. 10, 18 J. Law (23 Vroom) 104.

DESIGNATION.

State v. Trustees A. 683, 684, 52 N.

The term "designation," as used in the by-laws of a mutual benefit society declaring that, if no designation of a beneficiary has been made, the amount which the insured is entitled to receive shall be paid to his heirs, means and refers to the express act of the member specifying and naming some particular person as his beneficiary. Hanson v. Minnesota Scandanavian Relief Ass'n, 60 N. W. 1091, 1093, 59 Minn. 123.

The meaning of "designation," as found in the dictionary, includes “appellation." It, according to Webster, is that which designates distinctive title; appellation. According to Worcester, its meaning is "that which serves to distinguish." As used in a statute requiring ballots to be on plain white paper, clear and plain cut, without any ornaments, "designation," mutilation, symbol, or mark of any kind whatsoever, except the name or names of the person or persons voted for and the office for which such persons are intended to be chosen, it is, on account of its associate words, to be construed to intend only designations in the nature of ornamentations, mutilations, symbols, or marks, as distinct from words or writings, and hence ballots having on them, in the body thereof, the words "National Republican Ticket," "Free Suffrage Ticket," are not illegal or contrary to the purposes of the statute. State v. Saxon, 12 South. 218, 225, 30 Fla. 668, 18 L. R. A. 721, 32 Am. St. Rep. 46.

In Civ. Code, § 2466, requiring every firm doing business under a fictitious name or "designation, not showing the names of the partners," to file and publish a certificate showing the full names and residences of its members, "designation" is not used in opposition or contrast between the phrase "fictitious name"; the former is supplementary to the latter. Pendleton v. Cline, 24 Pac. 659, 660, 85 Cal. 142.

DESIRABLE.

In a railroad charter authorizing the company, for the purpose of constructing its

putting and keeping the same in repair, to enter upon, take, and hold all real estate and materials necessary for that purpose, the word “desirable" should be construed to mean "necessary." Prather v. Jeffersonville, M. & I. R. Co., 52 Ind. 16, 37.

Under the charter of a corporation organized for the manufacture and dealing in lumber and other articles, and providing that the company may acquire and transfer, purchase and hold, sell or exchange, any real estate sirable" in the transaction of its business, or other property that may be deemed "dethe corporation has power to purchase its own stock. Iowa Lumber Co. v. Foster, 49 Iowa, 25, 28, 31 Am. Rep. 140.

DESIRE.

A desire, either natural or otherwise, is not a consideration for a contract. It may be a motive for a party entering into a contract, but we take it that it does not constitute a legal consideration. A friendly feeling and a wish and desire to help are always necessarily present in the mind of an accommodation guarantor. Greer Machinery Co. v. Stains (Tenn.) 59 S. W. 692, 699.

Under a statute authorizing an information in quo warranto by any person desiring to prosecute the same is meant any person who has an interest to be affected, and the words do not give a private relator the writ in a case of private right involving no individual grievance. Commonwealth v. Cluley, 56 Pa. (6 P. F. Smith) 270, 272.

in the nature of a quo warranto may be exThe statute providing that informations hibited at the relation of any person desiring to prosecute the same means any person having an interest in the subject of the prosecution; and one claiming the office of a school director, but who is not shown to be a qualified elector of the district, is not in a position to file an information in the nature of quo warranto against the incumbent. v. Boal, 46 Mo. 528, 531.

As word of intention.

State

Either of the words "wish," "desire," "command," or "direct," is an apt word to be used in a will to show testator's intent to make a will. Barney v. Hayes, 29 Pac. 282, 284, 11 Mont. 571, 28 Am. St. Rep. 495.

"Desire," as used in a will declaring, "It is my will and desire," etc., is the equivalent of the word "wish," and indicates an intention of the testator to dispose of the property to which the wish refers; the word “will” being stronger in its meaning than "desire." McMurry v. Stanley, 6 S. W. 412, 414, 69 Tex 227.

As positive direction.

In a will reciting that "I desire that at such time as may be agreeable and mutually consented to by my wife and my son, the homestead may be sold and one purchased in lieu thereof by them at a cost not exceeding $8,000, and any excess in price must be invested and added to my estate," the word "desire" does not bear a sense merely hortatory or precatory, but is equivalent to a positive direction. Stewart v. Stewart, 47 Atl. 633, 635, 61 N. J. Eq. 25.

"Desire," as used in a will providing that "on the death of my wife I desire that onehalf of the property," etc., does not import a trust or charge or a command. In re Marti's Estate, 61 Pac. 964, 965, 132 Cal. 666.

In a will in which the testator desires his trustees to apply the residue of his estate

to such of a certain class of charitable insti

tutions as the trustees should deem worthy thereof, "desire" should be construed as a command in a polite form. Weber v. Bryant, 37 N. E. 203, 161 Mass. 400.

The words "I desire," in a will in which the testator said, "I desire that all my estate shall be sold and the proceeds invested in first bonds and mortgages," are the equivalent of the words "I will," and amounts to a direction to sell. Appeal of City of Philadelphia, 4 Atl. 4, 5, 112 Pa. 470.

The word "desire," when used in a will, does not necessarily imply a command, but is dependent on the language of the will, and, a will attempting to dispose of all real estate, will be held mandatory. Meehan v. Brennan, 45 N. Y. Supp. 57, 58, 16 App. Div. 395.

Testator devised to his wife all his estate, real, personal, and mixed, to her sole and separate use, behoof, and control forever, but in a subsequent item provided that it was also his "desire and wish," after his wife's death, that his house and lot should go to his daughter for her sole and separate use. Held, that while the words "wish and desire" were sometimes considered to be precatory words, merely, in wills, and not mandatory,

as where they are used as expressing a desire for an act to be done by some person or persons named, no such presumption or construction obtains when the words are used to ex

press the intention and will of the testator, as in the devise quoted, in which case such words are to be treated as mandatory; and hence the testator intended to give his wife only a life estate in the house and the lot, with remainder to the daughter. Taylor v. Martin (Pa.) 8 Atl. 920, 922.

In a will in which testator gave a farm to a certain person for his support, and then declared that, if such person should be spared to have family, "I desire" such estate to go to the use of his children, the expression is not merely precatory, but is as mandatory as if

the words "I will" or "I order and direct"

had been used. Oyster v. Knull, 20 Atl. 624, 137 Pa. 448, 21 Am. St. Rep. 890.

The words "wish and desire," in a will in which testator suggested that it was his wish and desire that all his real estate should be divided between his children, was con strued to be not merely the expression of desire on the part of the testator, but to be operative words sufficient to pass the property. Brasher v. Marsh, 15 Ohio St. 103, 111.

Testatrix directed her residuary estate to be divided into three equal parts, one of which she devised absolutely to her daughter. In a codicil to her will testatrix declared her "desire that one-half of the share of the property inherited from me by my daughter be placed in trust," designating the

trustee.

used by the testatrix in the codicil, was not Held, that the word "desire," as entreaty addressed to the legatee or devisee, a word of mere request, recommendation, or but was an order, direction, or command ad

dressed to the executors of the will. Wood v. Camden Safe Deposit & Trust Co., 14 Atl. 885, 886, 44 N. J. Eq. (17 Stew.) 460.

As creating a trust.

In a will where testator makes an absolute gift of property, saying that he desires it to be used in a certain way, the word "desire" is sufficient to raise a trust where the certain. Major v. Herndon, 78 Ky. 123, 128; subject and object of the trust are sufficiently Maught v. Getzendanner, 5 Atl. 471, 472, 65 Md. 527, 57 Am. Rep. 352; Lines v. Darden, 5 Fla. 51, 72; Curd v. Field, 103 Ky. 293, 45 S. W. 92; Riker v. Leo, 21 N. E. 719, 720, 115 N. Y. 93 (citing 1 Wm. Ex'rs, 88; Vandyck v. Van Beuren, 1 Caines, 84); Cockrill v. Armstrong, 31 Ark. 580, 589.

Where a testator's will recited that he

desired his three sons, in case any of his daughters should be inclined to purchase of them certain land bequeathed to them, should let such daughters have it at the same price they had paid for it, the word "desire" raised

a trust. Vandyck v. Van Beuren (N. Y.) 1

Caines, 84, 89.

As wish.

In Act March 7, 1887 (St. 1887, p. 46) 8, reciting that it is "desired and required that all growers and manufacturers, traders, handlers or bottlers of California wine, when selling or putting it up for sale or when shipping it to parties sold, shall plainly stencil, brand or have printed where it may be easily seen, 'pure California wine,' and his name or the firm's name both on the label or bottle or package," "desired and required" should be construed as intended to express rather a legislative wish and permission than a mandate. As words of legislative command, they are singularly inappropriate and inconsistent. The word "desired" cannot be ignored in the

« SebelumnyaLanjutkan »