DEVISAVIT VEL NON, practice. The name of an issue sent out of a court of chancery, or one which exercises chancery jurisdiction1, to a court of law, to try the validity of a paper asserted and denied to be a will, to ascertain3 whether or not the testator did devise, or whether or not that paper was his will. 7 Bro. P. C. 437; 2 Atk. 424; 5 Barr, 21.
DEVISE. A devise is a disposition4 of real property by a person s last will and testament5, to tale effect after the testator s death.
2. Its form is immaterial, provided the instrument is to take effect after the death of the party; and a paper in the form of an indenture6, which is to have that effect, is considered as a devise. Finch7. 195 6 Watts8, 522; 3 Rawle, 15; 4 Desaus. 617, 313; 1 Mod. 117; 1 Black. R. 345.
3. The term devise, properly and technically9, applies only to real estate the object of the devise must therefore be that kind of property. 1 Hill. Ab. ch. 36, n. 62 to 74. Devise is also sometimes improperly10 applied11 to a bequest12 or legacy13. Vide 2 Bouv. Inst. n. 2095, et seq; 4 Kent, Com. 489 8 Vin. Ab. 41 Com. Dig. Estates by Devise.
4. In the Year Book, 9 H. VI. 24, b. A. D. 1430, Babington says, the nature of a devise, when lands are devisable, is, that one can devise that his lands shall be sold by executors and this is good. And a devise in such form has always been in use. And so a man may have frank tenement14 of him who had nothing, in the same manner as one may have fire from a flint, and yet there is no fire in the flint. But it is to perform the last will of the devisor.
DEVISEE. A person to whom a devise has been made.
2. All persons who are in rerum natura, and even embryos15, may be devisees, unless excepted by some positive law. In general, he who can acquire property by his labor16 and industry, may receive a devise. C. & N. 353.
DEVISOR. A testator; one, who devises his real estate.
2. As a general rule all persons who. may sell an estate may devise it. The disabilities of devisors may be classed, in three divisions. 1. Infancy17. In some of the United States this disability is partially18 removed; in Illinois, Maryland, Mississippi and Ohio, an unmarried woman at the age of eighteen years may devise. 2. Coverture. In general, a married woman cannot devise; but in. Connecticut and Ohio she may devise her lands; and in Illinois, her separate estate. In Louisiana, she may devise without the consent of her hushand. Code, art. 132. 3. Idiocy19 and non sane20 memory. It is evident that a person non compos can make no devise, because he has no will.
3. The removal of the disability which existed at the time of the devise does, not, of itself, render it valid2. For example, when the hushand dies, and the wife becomes a feme sole; when one non compos is restored to his sense; and when an infant becomes of age; these several acts do not make a will good, which at its making was void. 11 Mod. 123, 157; 2 Vern . 475; Comb, 84; 4 Rawle, R. 3.36. Vide. Testament or ill.
