As distinguishing mark on ballot.

"It is true, 'device' sometimes means an emblem or pictorial representation, though in the Bible and by Shakespeare it is almost always used in the sense of 'contrivance,' 'plan,' or 'trick.' But these are all secondary or derivative meanings. Webster tells us that the word comes from the Latin "dividire," -to separate; to distinguish.' This is its primary signification, and is that intended by its use in Code, §§ 2687, 2689, providing that ballots shall be without device, and that any ballot having a device on it shall be void. The letters 'O.K.,' written or printed on the outside of the ballots, would serve as fully to destroy the secrecy of the ballot, and give opportunity for intimidation of the voter, as if a cotton bail or an arm and hammer were imprinted there. In either case they fall within the denunciation of the statute, in the purview of which the word 'device' means simply a distinguishing mark." Baxter v. Ellis, 15 S. E. 938, 939, 111 N. C. 124, 17 L. R. A. 382.

In Code 1880, § 137, which excludes any device or mark by which one ticket in an election may be known or distinguished from

another, "device" should be construed to include a dotted line across the face of the ticket which distinguishes it from other tickets. Steele v. Calhoun, 61 Miss. 556, 563.

In the statute prescribing the form of election tickets, and prohibiting the printing of any device thereon, by the word "devise" the statute evidently intended some figure, mark, ornament, emblem, or cipher which would distinguish the ticket from other tickets cast in the election. It intended to secure the secrecy of the ballot, and to preserve the voter from undue influence or restraint in exercising the right of suffrage. The statute is not violated by printing on such tickets, voted at a general election at which presidential electors are chosen, the names of popular candidates for president and vice-president, and the counties in which presidential electors reside. Owens v. State, 64 Tex. 500, 509.

The use of stickers or pasters with the name of a candidate printed thereon, and pasted on the face of a ballot, over the printed name of an opponent, is not a cut or device, within Gen. St. c. 1, § 82, prohibiting the use of any ballot containing a cut or device on its face or back to distinguish it from other ballots. Quinn v. Markoe, 35 N. W. 263, 264, 37 Minn. 439.

any picture, sign, device, or stamp mark on them, does not include a person's name. Hanscom v. State, 31 S. W. 547, 549, 10 Tex. Civ. App. 638.

The phrase "impression, device, color, or thing," within the meaning of 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, when construed with the phrase "designed to distinguish such ballots," is to be taken to mean an impression, device, color, or thing expressly designed as a means of designating the ballot, and does not include a mere discoloration appearing on a ballot, which is not designed, but resulting from the use of ink by the elector in scratching his ballot. Wyman v. Lemon, 51 Cal. 273, 274.

As applying to shape of ballot.

"Device," as used in Act 1879, prohibiting a device from being printed or being made in any manner on election ballots by which one may be known or distinguished from another, means a figure, mark, or ornament of a similar character with the pictures, signs, etc., enumerated in the same connection, and placed on the ticket in the same manner that is, printed, engraved, stamped, or otherwise placed thereon-and does not mean the giving of the tickets a diamond shape. State v. Phillips, 63 Tex. 390, 393, 51 Am. Rep. 646.

Substitute distinguished.

In Code 1876, § 4207, providing for the punishment of one playing at a game of cards or dice, or some device or substitute for cards or dice, at a tavern, public house, highway, or some other public place, “device" means that which is devised or formed by design-a contrivance or invention-and is not synonymous with "substitute," which means that which is put in the place of another thing, or used instead of something else. As used in the statute, "device" seems to have a somewhat more narrow meaning than "substitute." "Substitute" would embrace whatever might be used in place of cards or dice, whether designed or invented for that purpose or not. Henderson v. State, 59 Ala. 89, 90.

DEVICE BY WAY OF SEAL.

The term "device by way of seal," as used in a statute declaring that instruments entitled to record must be executed with a device by way of a seal, is sufficiently satisfied to entitle an instrument to record where the word "Seal" is written in the place where the seal would have been affixed. Cochran v. Stewart, 59 N. W. 543, 544, 57 Minn. 499.

DEVIL.

"Devil" is the name given to a machine used for cleaning cotton. Whitney v. Carter (U. S.) 29 Fed. Cas. 1070, 1071.

DEVILING.

"Deviling," as used by a witness in a prosecution for murder, stating that the defendants were deviling the deceased, was explained to mean such acts as taking his cap from the deceased, placing their hands on his person, threatening to put him in the lockup, and raising the foot as if to strike him, so as to drive him into a store for protection, etc. State v. Jimmerson, 24 S. E. 494, 118 N. C. 1173.

DEVISABLE.

The words "devisable" and "descendible" are convertible terms, so that, where a contingent remainder is descendible, it is also devisable. Collins v. Smith, 31 S. E. 449, 451, 105 Ga. 525; Varick v. Jackson (N. Y.) 2 Wend. 166, 183, 19 Am. Dec. 571.

DEVISE.

See "Beneficial Devise"; "Executory De-
vise"; "General Devise"; "Lapsed De-
vise"; "Void Devise."
Charitable devise, see "Charity."

A devise is the direction of a testator of sound mind as to the disposition of his property after death. Jenkins v. Tobin, 31 Ark. 306, 309.

A will making a specific devise of testator's property, directing all the rest of his property, both real and personal, to be given to his wife, and directing and empowering his executors to sell all the real estate not devised therein, means "specifically devised." Provost's Ex'r v. Provost, 27 N. J. Eq. (12 C. E. Green) 296, 297.

Rev. St. § 2068, provides that a grant or devise made to two or more persons, except as provided for in the following section, shall be construed to create estates in common, not of joint tenancy, unless expressly declared to be in joint tenancy. Rev. St. § 2069, provides that the preceding section shall not apply to mortgages or to devises or grants made in trust, or made to executors or to husband and wife. It was held that a mutual benefit insurance certificate payable to the wife and daughter is in effect a devise, and thus includes a joint tenancy. Farr v. Trustees of Grand Lodge A. O. U. W., 53 N. W. 738, 740, 83 Wis. 446, 18 L. R. A. 249, 35 Am. Rep. 73.

Bequeath or bequest synonymous.

See, also, "Bequeath."

The term "devise" is the proper term to be used in a will to denote a gift of real property, but, where the context shows that it is used by the testator in a different sense, it will be construed as sufficient to pass personal property, and to be synonymous with "bequeath." Borgner v. Brown, 33 N. E. 92, 94, 133 Ind. 391; Oothout v. Rogers, 15 N. Y. Supp. 120, 122, 59 Hun, 97; Cramer v. Cramer, 71 N. Y. Supp. 60, 61, 35 Misc. Rep. 17; Kilber v. Miller, 10 N. Y. Supp. 375, 57 Hun, 14; Rountree v. Pursell, 39 N. E. 747, 749, 11 Ind. App. 522; Wyman v. Woodbury, 33 N. Y. Supp. 217, 220, 86 Hun, 277; McCorkle v. Sherrill, 41 N. C. 173, 176; Pfuelb's Estate (Cal.) 1 Myr. Prob. Rep. 38, 39.

Although the word "devise" is more specially appropriated to a gift of land, the terms "bequest" and "devise" are used indifferently, and legatees may take under a devise of land if the context of the will shows that such was the testator's intention. Ladd v. Harvey, 21 N. H. 514, 528.

In the construction of statutes the words "bequeath" and "devise" shall be held to mean the same thing. Ky. St. 1903, § 467.

Within laws creating a charitable corporation, and authorizing it to take property by devise, and an act providing that devises or bequests to a charitable corporation shall be void unless the will was executed two months before testator's death, the word "devise" includes bequests, and personalty could not be taken under a will made within the time specified. People's Trust Co. v. Smith, 31 N. Y. Supp. 519, 522, 82 Hun, 494.

In Gen. St. § 3481, authorizing testators to devise all their estate in lands, tenements, hereditaments, annuities, or rents charged on or issuing out of them, or goods and chattels and personal estate of every description whatsoever, by will and testament, the word "devise" was not used in its technical and legal sense, which is limited to gifts of real estate or real chattels, but was used by the legislators to apply to gifts of both real and personal estate. Logan v. Logan, 17 Pac. 99, 101, 11 Colo. 44.

In an act giving a widow an election to renounce the benefit of a devise and bequest, and take dower in the lands and her share of the personal estate, "devise" is a controvertible term with "bequest," and will include either a gift by will of land or of personal property. Evans v. Price, 8 N. E. 854, 857, 118 Ill. 593.

As used in Act April 13, 1843, subjecting "all legacies given and lands devised" to any person to attachment and levy, the terms "legacies given" and "lands devised" are artistic phrases meaning different things,

and neither includes the other, so that an interest in goods and chattels is different from an interest in lands. Appeal of Roth, 94 Pa. 186, 191.

The fact that there was originally no testamentary power over land, so that a will or testament was confined to a disposition of personal estate, seems to have given rise to the term "devise," which was considered as more in the nature of a conveyance than of a testament, and hence was termed a "de vise," meaning primarily a dividing or division; a devise in writing being construed as an instrument by which lands are conveyed. "Will" and "testament" had not at first precisely the same meaning as “devise," but in course of time these words came to be implied indifferently to a disposition of land or goods. Per Tarbell, J., in Clark v. Hornthal, 47 Miss. 434, 486.

As effective devise.

The term "devise of lands," as used in Elm. Dig. 145, providing that if a husband shall make a devise of lands to his wife for her life or otherwise, and without expressing such devise as intended to be in lieu of dow

er or not, and such wife shall survive her husband, she shall not be entitled to dower in any lands devised by her husband, unless she shall, in writing, express her dissent to receiving lands so devised to her in satisfaction and bar of the right of dower in the other lands devised by the will, means such a devise as may and can take effect and be enjoyed by the wife; and there is no difference in a devise of lands to which the testator had no title, and a devise of lands which by the law of the state are first subject to the payment of his debts, and wholly absolved by such payment. Thompson v. Egbert, 17 N. J. Law (2 Har.) 459, 465.

Descent distinguished.

See "Descent."

As purchase.

See "Purchase."

As a testamentary disposition of land.

Every bequest of personal property is a legacy. The word "devise" is especially appropriate to a gift of lands, and the word "legacy" to a gift of chattels. In re Karr (N. Y.) 2 How. Prac. (N. S.) 405, 409.

"Devise," in its technical sense, means a testamentary disposition of land. Ferebee v. Procter, 19 N. C. 439, 440; Fosdick v. Town of Hempstead, 8 N. Y. Supp. 772, 773, 55 Hun, 611; Scholle v. Scholle, 21 N. E. 84, 85, 113 N. Y. 261; Logan v. Logan, 17 Pac. 99, 100, 11 Colo. 44; Pratt v. McGhee, 17 S. C. 428, 429; In re Davis' Will, 79 N. W. 761, 762,

103 Wis. 455.

"Devise" properly means a testamentary disposition of land, and should not be applied

to such dispositions of personalty. Dickerman v. Abrahams (N. Y.) 21 Barb. 551, 561; In re Fetrow's Estate, 58 Pa. (8 P. F. Smith) 424, 427; Rountree v. Pursell, 39 N. E. 747, 749, 11 Ind. App. 522.

The word "devise" has a well-defined legal meaning. It is a gift of real property by a person's last will and testament, and the object must therefore be that kind of property. Bouv. Law Dict. And although the courts have, in order to give effect to the testator's evident intention, included personal property as covered by the word "devise," when used in a will, such a meaning has never been given to the word in order to restrict or abridge a right or privilege granted, where it was not necessary to carry a clearly expressed intention into effect. People's Trust Co. v. Smith, 31 Abb. N. C. 422, 424, 30 N. Y. Supp. 342, 343.

In accurate language, the word "devise” applies to land only. It is, however, sometimes inaccurately applied to personal property. Oothout v. Rogers, 59 Hun, 97, 100, 13 N. Y. Supp. 120.

The use of the words "devise" and "devisee" in a codicil of a will indicates that it was in the mind of the testator that his

real estate would continue to be real estate when his son arrived at the age of 21 years, if he lived so long. Chandler v. Thompson, 48 Atl. 583, 585, 62 N. J. Eq. 723.

"Although in England, under the Saxons, lands were devisable by will at common law, yet at the Conquest, and upon the introduction of a feudal system, the common law underwent a complete change in this respect, and an estate in fee simple in lands was no longer devisable. It became inconsistent with the nature of that system that a tenant should have an unlimited power to devise his lands, for the reason that he might devise to persons incapable of performing feudal services. The power of alienation by devise, except of a chattel interest, is, in England, then, to be traced to the statute of wills of 32 Hen. VIII, c. 1, and 34 Hen. VIII, c. 5." McCartee v. Orphan Asylum Soc. (N. Y.) 9 Cow. 437, 517, 18 Am. Dec. 516 (quoting 32 Hen. VIII, c. 1, and 34 Hen. VIII, c. 5).