Homepathic Mut. Life Ins. Co., 10 N. Y. ease of nutrition, and not necessarily affectSupp. 75, 56 Hun, 455. DEVOLUTIVE APPEAL. A devolutive appeal is one which does not suspend the execution of a judgment appealed from. State ex rel. Schwan v. Allen, 26 South. 434, 436, 51 La. Ann. 1842. DEVOLVE. An estate is said to "devolve" on another when by operation of law, and without any voluntary act of the previous owner, it passes from one person to another; but it does not devolve from one person to another as the result of some positive act or agreement between them. The word is itself of intransitive signification, and does not include the result of an act which is intended to produce a particular effect. It implies a result without the intervention of any voluntary actor. Francisco v. Aguirre, 29 Pac. 495, 497, 94 Cal. 180; First Nat. Bank of San Jose v. Menke, 60 Pac. 675, 677, 128 Cal. 103. DEVOTE. Const. § 267, providing that no person shall hold an office of profit without personally "devoting his time" to the performance of the duties thereof, should be reasonably construed as requiring the official to give his own time and personal services to the performance of the duties of his office, but does not prohibit a temporary absence from public office, where such absence is not detri. mental to its interests and does not evidence neglect of official duty. Fairley v. Western Union Tel. Co., 18 South. 796, 797, 73 Miss. 6. The words "devoted solely to the appropriate objects of the institution," in Code, § 797, exempting from taxation property of religious institutions which is devoted solely to the appropriate objects of the institution, do not characterize a town lot held by a religious company under a deed of gift, containing no conditions, and which has not been used by the company for any of the purposes for which it is organized, and which the company has not determined to use in the future for any such purposes. Kirk v. St. Thomas' Church, 30 N. W. 569, 570, 70 Iowa, 287. DHOLL. A "dholl" is a round skein of yarn, wound together and tied up, about 30 inches long and 5 inches in diameter, thick at one end and narrow at the other. The Dunbritton (U. S.) 73 Fed. 352, 355, 19 C. C. A. 449. DIABETES. "Diabetes" is commonly known as a disease of the kidneys, though primarily a dis ing their structure in its early stages. It is a very serious disease, of doubtful curability. New York Life Ins. Co. v. Fletcher, 6 Sup. Ct. 837, 840, 117 U. S. 519, 29 L. Ed. 934. DIAGNOSIS. A "diagnosis" is said to be little more than a guess, enlightened by experience. Swan v. Long Island R. Co., 29 N. Y. Supp. 337, 338, 79 Hun, 612 (citing Griswold v. New York Cent. & H. R. Co., 115 N. Y. 61, 64, 21 N. E. 726, 12 Am. St. Rep. 775). DIAMONDS. "Diamonds," as used in Tariff Act August 27, 1894, par. 467, covers only miners', glaziers', and engravers' diamonds not set, and does not include any other diamonds cut but not set. United States v. Frankel (U. S.) 68 Fed. 186, 188. DICTATE-DICTATION. In a technical sense, "dictation" means to pronounce orally what is destined to be written at the same time by another. Prendergast v. Prendergast, 16 La. Ann. 219, 220, 79 Am. Dec. 575. To "dictate," as defined by 5 Foultier, 350, is to present, word by word, what is designed to be written by another; hence he concludes that a will cannot be made by signs or interrogations. This able writer does not say what, or whether any, variance is fatal. We know that there have been decisions in some courts of France requiring the utmost precision in the amanuensis, but we are not to adopt this doctrine in its utmost extent. It is desirable to have, as much as possible, every word taken down from the testator's mouth; but we cannot adopt the unqualified proposition that the slightest variance is fatal, as, for example, the substitution of the pronoun "which" instead of "that." Hamilton v. Hamilton (La.) 6 Mart. (N. S.) 143, 145. A person cannot be said to have written a will at the dictation of another when he did not understand the language of such other, but receives his instructions from the testator through an interpreter. Bordelon's Heirs v. Baron's Heirs, 11 La. Ann. 676, 679. To "dictate to" is to tell another what to write; to indict; to teach; to show another something with authority; to declare with confidence; and a "dictator" is one whose credit or authority enables him to direct the opinion or conduct of another. If a son had such power and authority over his father as to be able to direct him how to make his will, and exerted that power to cause him to make a will in which the son is the principal legatee, it was the use of undue influence, and would destroy the will. Marshall v. Flinn, obiter dictum. Buchner v. Chicago, M. & N. 49 N. C. 199, 205. DICTUM. A "dictum" is an opinion expressed by the court, but which, not being necessarily involved in the case, lacks the force of an adjudication. Rush v. French, 25 Pac. 816, 825, 826, 1 Ariz. 99; In re Woodruff (U. S.) 96 Fed. 317, 321; State v. Clarke, 3 Nev. 566, 572. "Dicta" are opinions of a judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter dicta are such opinions uttered by the way, not upon the point in question pending, as if turning aside for the time from the main topic of the case to collateral subjects. Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47, 20 Am. Rep. 451; Brown v. Chicago & N. W. Ry. Co., 78 N. W. 771, 772, 102 Wis. 137, 44 L. R. A. 579. Where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is obiter dictum. Hart v. Stribling, 25 Fla. 433, 435, 6 South. 455; L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co. (U. S.) 109 Fed. 393, 400, 48 C. C. A. 436. "According to the more rigid rule," says Bouvier, "an expression of an opinion, however deliberate, upon a question, however fully argued, if not essential to the disposition that was made of the case, may be regarded as a dictum. But it is, on the other hand, diflicult to see why, from a philosophical point of view, the opinion of the court is not as persuasive, on all the points which were involved in the cause, that it was the duty of the counsel to argue them, and which were deliberately passed over by the court, as if the decision had hung upon but one point." Such dictum, if it is a dictum, should be regarded as a "judicial dictum," in contradistinction to mere "obiter dictum"; that is, an expression originating with the judge alone, while passing by the way, in writing an opinion, as an argument or illustration drawn from some collateral question. Mere obiter dicta are not always reprehensible; on the contrary, some of the most sacred canons of the common law had their origin in the mere dicta of some wise judge. To be valuable, however, they must of course be right. An opinion of an appellate court, to be of value to a trial court, must deal with the facts presented and the questions involved and discussed at the bar, even though some of them are only indirectly involved in the determination of the question upon which the case turns, so that an expression of the court, while dealing with the case in this way, cannot be regarded as mere 3 WDS. & P.-4 W. Ry. Co., 19 N. W. 56, 57, 58, 60 Wis. 264. It frequently happens that, when assigning its opinion on a question before it, the court discusses collateral questions and expresses decided opinions on them. Such opinions, however, are frequently given without much reflection, and without previous argument at the bar; and, moreover, they do not enter into the adjudication of the point before the court. They have only that authority which may be accorded to the opinions, more or less deliberate, of the individual judge who announces it. Rush French, 25 Pac. 816, 825, 826, 1 Ariz. 99. V. The Supreme Court of the United States has held that, in order to make an opinion a decision, there must have been an application of a judicial mind to the precise question necessary to be determined to fix the rights of the parties. Thus where in an opinion it is stated, while, in view of what has been stated above, it may be unnecessary at present to determine the next question raised in this case, as it is one of great importance and will frequently arise, it may as well be decided now as hereafter, the statement of law which follows will be treated as a dictum. In re Woodruff (U. S.) 96 Fed. 317, 321. The fact that a decision might have been put upon a different ground, existing in the case, does not place it in the category of a dictum. Clark V. Thomas, 51 Tenn. (4 Heisk.) 419, 421. It cannot be said that a decision of the court on a certain point is dictum, where that point was properly presented and decided in the regular course of the consideration of the case, merely because something else was found in the end which disposed of the whole matter. Therefore where, in an action by a railroad company for a default in the payment of interest on the companies' bonds received by the state in exchange for state bonds, the company set up the unconstitutionality of the exchange of the bonds. and the court decided that there was statutory authority for such exchange, such decision was not dictum, though the suit was eventually dismissed on entirely different grounds. Florida Cent. R. Co. v. Schutte, 103 U. S. 118, 143, 26 L. Ed. 327. Where a question was presented and discussed in a case, and the opinion of the court or the majority of the court expressed on it, which question was presented by the instructions, the opinion was not obiter dictum, though the decision of such question might have been omitted. It frequently happens that the decision of a single point in a case will determine the affirmance or reversal of the judgment in that case, but it does not follow that the court may not proceed to examine and decide other points which the record presents; and indeed the latter course is more satisfactory to all parties concerned, I should die by his own hands, should be so and saves the necessity of again resorting to construed as to excuse any such cases as acthe inferior court. Kane v. McCown, 55 Mo. cident or delirium, and to cases in which the 181, 199. self-destruction is clearly shown to have been tual Ben. Life Ins. Co., 55 N. Y. 169, 177, 14 accidental or involuntary. Van Zandt v. Mu The mere dictum of a judge is not the decision of a court. There is nothing authoritative in a case except what is required to be decided to reach the final judgment, and what, by the judgment, becomes res adjudicata between the parties as to the subjectmatter of the suit. Love v. Miller, 53 Ind. 294, 21 Am. Rep. 192. "An obiter dictum is a gratuitous opinion, an individual impertinence, which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it. Old Judge"-taken from the title-page of a work on "Obiter Dicta," published by John D. Allen; New York, 1885. Hart v. Stribling, 6 South. 455, 456, 25 Fla. 433. DIE BY THE HAND OF JUSTICE. "Death by the hands of justice' is a well-known phrase, denoting an execution, either public or private, of a person convicted of crime, in any form allowed by law. The moral guilt of the party executed has nothing to do with the definition. Socrates, though he took the poison from his own hand, 'died by the hands of justice' in this sense of the term." Breasted v. Farmers' Loan & Trust Co., 8 N. Y. (4 Seld.) 299, 303, 59 Am. Dec. 482. To "die by the hands of justice" is dying by the execution of the sentence of the law. Harper's Adm'r v. Phoenix Ins. Co., 19 Mo. 506, 507. Am. Rep. 215. A condition in a policy of life insurance that it shall be void if the insured shall "die by his own hand" has no application where the insured killed himself by accident, or if the insured destroys his life while of unsound mind, if his mind is so impaired by disease that he does not comprehend the wrong character of the deed, though he may have sufficient mental capacity to know the physical consequences of the act. Michigan Mut. Life Ins. Co. v. Naugle, 29 N. E. 393, 395, 130 Ind. 79. A life policy providing that it shall be void if the assured "die by his own hand" means a criminal act of self-destruction, where the mind and hand concur in producing death. It refers to the voluntary, sane act of the assured. Considering the condition avoiding the policy in case the insured die by his own hand literally, it would in clude a death caused by his own hand even by accident or mistake, as in case of an accidental discharge of a firearm while held by him, or the taking by mistake of poison under the belief that it was proper medicine. Scheffer v. National Life Ins. Co., 25 Minn. 534, 536. The phrase "die by his own hand," as used in a policy of life insurance providing that in case the insured should die by his own hand the policy should be void, is synonymous with "suicide," and does not include suicide by an insane man in a fit of insanity. It means a felonious death, a case of felo de se, and not a case of death without legal or moral blame-the result of accident, mistake, or disease. The madman, who in a fit of delirium commits suicide, as much dies by his own hand as does the individual who accidentally and unintentionally takes his own life. They each die by their own hands, but without moral responsibility or legal blame. One is no more within the conditions of the policy than the other. The phrase "die by his own hand" may include all cases of death by the person on whose life the policy is effected, or it may receive limitations. The authorities concur in this, that the expression does not embrace all If the cases of death by one's own hand. insured kill himself by drinking poison, not being aware that it was poison, or by snapping a loaded pistol, ignorant that it was loaded, or by leaping from a window in the delirium of a fever, it is conceded that he did not die by his own hand within the meaning of the clause under consideration, though A contract of insurance, providing that he might literally die by his own hand; that the policy should be void in case the assured, is, by his own act. Eastabrook v. Union Mut. To "die by the hands of justice," as used, in a life policy wherein it is provided that the same shall be void if the insured die by the hands of justice, means to die by some judicial sentence imposed for the commission of some felony. Spruill v. North Carolina Mut. Life Ins. Co., 46 N. C. 126, 127. DIE BY HIS OWN HAND OR ACT. Accidental or unintentional self-killing is not within a condition forfeiting a policy for taking one's own life. Keels v. Mutual Reserve Fund Life Ass'n (U. S.) 29 Fed. 198, 201. Life Ins. Co., 54 Me. 224, 225, 89 Am. Dec. | act, is limited to the deliberate act of the in743. In an action on a life policy which provided that the policy should be void "if the assured shall die by his own hand or act," he having hanged himself, the court said: "It is now too well settled to admit of question that this clause is not to be construed as comprehending every possible case in which life is taken by the party's own act. For instance, all the authorities concur in the view that an unintentional or accidental taking of life is not within the meaning and intention of the clause. Thus if, by inadvertence or accident, a party shoots himself with a gun or pistol, or takes poison by mistake, or in a sudden frenzy or delusion tears a bandage from a wound and bleeds to death, in the literal sense of the term he "dies by his own act"; yet all the decisions agree that a reasonable construction of the proviso, according to the plain and obvious intention of the parties, would exclude such cases from its operation. * * Knickerbocker Life Ins. Co. v. Peters, 42 Md. 414, 417, 421. A policy of insurance providing that it should be void if the insured should "die by his own hand" means voluntary and intentional self-destruction by the insured, but has no application to a case in which death resulted from accident, or without intention or expectation, even though it was caused by the hand of the accused. Death resulting from accident, or from an act which, at the time it was entered on or engaged in, was not. expected or intended to produce that result, cannot be said to be within the meaning of the policy. Where, from a cause over which the insured had no control, a state of mental and physical weakness resulted, and while in that state he took an overdraught of whisky, without any expectation or intention of destroying his life, he did not "die by his own hand," but by accident. Northwestern Mut. Life Ins. Co. v. Hazelett, 4 N. E. 582, 585, 105 Ind. 212, 55 Am. Rep. 192. sured in ending his own existence, or com mitting any unlawful malicious act, the consequences of which is his own death. The insured must be of years of discretion and in his senses when committing such act, as "it would be unreasonable to interpret it as including death by accident or by mistake, though the direct or immediate act of the insured may have contributed to it." preme Commander of the Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 448, 46 Am. Rep. 332. Self-destruction while insano. Su. A life insurance policy providing that there should be no liability in case assured should "die by his own hand" means an intentional suicide while assured is in full possession of his mental faculties, and a person who ends his life under the influence of an insane impulse which he has not the power to resist, or commits the act without a knowledge at the time of its moral character and its consequences and effects, does not "die by his own hand" within the meaning of the policy. Waters v. Connecticut Mut. Life Ins. Co. (U. S.) 2 Fed. 892; Mutual Life Ins. Co. v. Terry, 82 U. S. (15 Wall.) 580, 590, 21 L. Ed. 236; Terry v. Life Ins. Co. (U. S.) 23 Fed. Cas. 856, 857; Manhattan Life Ins. Co. 121, 27 L. Ed. 878; Mutual Life Ins. Co. v. v. Broughton, 3 Sup. Ct. 99 104, 109 U. S. Leubrie (U. S.) 71 Fed. 843, 844, 18 C. C. A. 332 (citing Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284, 23 L. Ed. 918; Charter Oak Life Ins. Co. v. Rodel, 95 U. S. 232, 24 L. Ed. 433; Accident Ins. Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. 685, 30 L. Ed. 740); Connecticut Mut. Life Ins. Co. v. Akens, 14 Sup. Ct. 155, 156, 150 U. S. 468, 37 L. Ed. 1148; Breasted v. Farmers' Loan & Trust Co., 8 N. Y. (4 Seld.) 299, 304, 59 Am. Dec. 482; De Gogorza v. Knickerbocker Life Ins. Co., 65 N. Y. 232, 235; Mutual Ben. Life Ins. Co. v. Daviess' Ex'r, 9 S. W. 812, 815, 87 Ky. 541; St. Louis Mut. Life Ins. Co. v. Graves, 69 Ky. (6 Bush) 268, 269; Mutual Life Ins. Co. v. Walden (Tex.) 26 S. W. 1012, 1013; Schultz v. Insurance Co., 40 Ohio St. 217, 223, 48 Am. Rep. 676; Knickerbocker Life Ins. Co. v. Peters, 42 Md. 414, 417, 421; New Home Life Ass'n v. Hagler, 29 Ill. App. 437, 439; Eastabrook v. Union Mut. Life Ins. Co., 54 Me. 224, 225, 89 Am. Dec. 743; Cooper "By his own hand," as used in a policy V. Massachusetts Mut. Life Ins. Co., 102 of insurance, providing that it should be void Mass. 227, 230, 3 Am. Rep. 451; Blackstone if the assured should die by his own hand V. Standard Life & Accident Ins. Co., 42 N. within two years from the date of the policy, W. 156, 160, 161, 74 Mich. 592, 3 L. R. A. does not mean death by accident. There 486; Scheffer v. National Life Ins. Co., 25 must be an intent to commit suicide, even Minn. 534, 536. though it be but the intent of a drunken man. Equitable Life Assur. Soc. v. Paterson, 41 Ga. 338, 367, 5 Am. Rep. 535. A policy containing a condition avoiding it in case the insured should "die by his own hand or act, voluntary or otherwise," is not avoided by a death purely accidental, caused by poison taken by the insured through mistake or ignorance, he being sane at the time. Penfold v. Universal Life Ins. Co., 85 N. Y. 317, 320, 39 Am. Rep. 660. The clause "die by his own act," as used in a policy exempting the insurer from liability if the insured should die by his own The words "die by his own hand," in a policy exempting the insurer from liability in case the insured die by his own hand, if literally construed, import death caused by the act of the assured, whether intentional or accidental. Some relaxation of their strict DIE BY HIS OWN HAND OR ACT 2054 DIE BY HIS OWN HAND OR ACT, ETC. sense, however, is required, by the nature of in policies of life insurance as synonymous, the contract, to effectuate the intention and and the popular understanding accords with object of the parties, but no qualification not this interpretation. Chief Justice Tindall in necessary to this end is warrantable. They Borradaile v. Hunter, 5 Man. & G. 668, says are intended to protect the insurer against the the expression 'dying by his own hand' is in consequences of the physical act of the de- fact no more than the translation into Engceased. They refer distinctly to the physical lish of the word of Latin origin 'suicide.' agency by which death may be caused, and Life insurance companies indiscriminately only by implication quite speculative to the use either phrase as conveying the same idea. moral sensibility of the agent. Their sense, If the words 'shall commit suicide,' standthen, is entirely satisfied by explaining them ing alone in the policy, import self-murder, as describing an act of the assured result- so do the words 'shall die by his own hand.' ” ing in his death as an intended consequence Bigelow v. Berkshire Life Ins. Co., 93 U. S. of it, irrespective of his understanding its 284, 286, 23 L. Ed. 918; Moore v. Connectimoral nature. Adopting the language of cut Mut. Life Ins. Co. (U. S.) 17 Fed. Cas. 672, Erskine, J., in Borradaile v. Hunter, 5 Man. 673; Keels v. Mutual Reserve Fund Life & G. 639, it seems to me that the only quali- Ass'n (U. S.) 29 Fed. 198, 201. See, also, fication that the literal interpretation of the Spruill v. Northwestern Mut. Life Ins. Co., 27 words with reference to the nature of the S. E. 39, 42, 120 N. C. 141; Billings v. Accicontract will permit is that the act of self- dent Ins. Co., 24 Atl. 656, 657, 64 Vt. 78, 17 destruction should be the voluntary and will- L. R. A. 89, 33 Am. St. Rep. 913; Grand Leful act of the assured, having at the time gion of Select Knights A. O. U. W. v. Kornesufficient power of mind and reason to un- man, 63 Pac. 292, 293, 10 Kan. App. 577; Muderstand the physical nature and consequence tual Life Ins. Co. v. Wiswell, 44 Pac. 996, of such act, and having at the time a pur- 998, 56 Kan. 765, 35 L. R. A. 258 (citing Mupose and intention to cause his own death tual Life Ins. Co. v. Terry, 82 U. S. [15 Wall.] by that act; and that the question whether 580, 591, 21 L. Ed. 236; Penfold v. Universal at the time he was capable of understanding Life Ins. Co., 85 N. Y. 317, 321, 322, 39 Am. and appreciating the moral nature and qual- Rep. 660; Northwestern Mut. Life Ins. Co. ity of his purpose is not relevant to the in- v. Hazelett, 105 Ind. 212, 4 N. E. 582, 55 Am. quiry, further than to illustrate the extent of Rep. 192; Equitable Life Assur. Soc. v. Pathis capacity to understand the physical char- erson, 41 Ga. 338, 367, 5 Am. Rep. 535); Blackacter of the act itself. The proviso exempts stone v. Standard Life & Accident Ins. Co., the insurers from liability when life is de- 42 N. W. 156, 160, 161, 74 Mich. 592, 3 L. R. stroyed by the act of the party insured, al- A. 486; Cooper v. Massachusetts Mut. Life though it may be distinctly traced as the re- Ins. Co., 102 Mass. 227, 229, 3 Am. Rep. 451; sult of a diseased mind, if the insured com- Eastabrook v. Union Mut. Life Ins. Co., 54 mitted self-destruction, intending to destroy Me. 224, 226, 89 Am. Dec. 743; Phadenhauer his life, and comprehending the physical nav. Germania Life Ins. Co., 54 Tenn. (7 Heisk.) ture and consequences of his act. Nimick v. 567, 570, 19 Am. Rep. 623. Mutual Ben. Life Ins. Co., 3 Pittsb. R. 293295, 18 Fed. Cas. 247, 248. In a policy of life insurance providing that the policy should be void in case the assured should die by his own hand, the words "die by his own hand," should be construed in their largest ordinary sense, which comprehends all cases of self-destruction. Where the assured voluntarily threw himself into the water, knowing at the time that he should thereby destroy his life, and intending thereby to do so, but at the time of committing the act he was not capable of judging between right and wrong, he "died by his own hand" within the meaning of the policy. Borradaile v. Hunter, 44 Eng. Com. Law, 335, 352. The clause "die by his own hand," as used in a life insurance policy, includes any form of suicide. Ritter v. Mutual Life Ins. Co., 18 Sup. Ct. 300, 306, 169 U. S. 139, 42 L. Ed. 693. "Death by his own hand," as used in an insurance policy providing that it should be void if the insured should die by his own hand, includes committing suicide by taking poison. Bachmeyer v. Mutual Reserve Fund Life Ass'n, 52 N. W. 101, 103, 82 Wis. 255. "By his own hand," as used in a condition of a policy of life insurance that it shall be void if a party shall die by his own hand, means suicide by any means, and includes the case of suicide by swallowing arsenic. Hartman v. Keystone Ins. Co., 21 Pa. (9 Harris) 466, 479. "By his own hand," as used in an insurance policy providing that the insurer should not be liable in case the insured should die by his own hand, meant an act of self-de- DIE BY HIS OWN HAND OR ACT, SANE struction, sane or insane. Dean v. American Mut. Life Ins. Co., 86 Mass. (4 Allen) 96, 98. Suicide synonymous. "The authorities uniformly treat the terms 'suicide' and 'dying by one's own hand' OR INSANE. Where a life policy provides that it shall be void if the insured "die by his own hand, sane or insane," it covers all cases of selfdestruction, whether felonious or not, and relieves the company from liability, though |