By the Court,
McCarran, J.,
after stating the facts:
1. It may, we think, be properly stated that but one question is presented in this appeal, and that a question of construction and application of a statutory provision.
The law of this state concerning wills was enacted by the legislature of 1862, and, with but one slight [450]*450exception, has remained since unamended, and is handed down to us in our Revised Laws practically in its original form and verbiage. Our law in this respect is found from sections 6202 to 6222, inclusive, Revised Laws of 1912. It is with section 18 of the act (section 6219, Revised Laws) that we have to deal in the matter at bar:
“When any estate shall be devised to any child or other relation of the testator, and the devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate so given by the will, in the same manner as the devisee would have done if he would have survived the testator.”
Under the provisions of this statute, we are asked the question: Did Harriet B. Cunningham, or Harriet E. Bailey as she is now known, as the daughter of Hattie Cunningham, deceased, a beneficiary under the will of Jennie Lewis, take that part of the residue of the estate of Jennie Lewis consisting of personal property which would have passed to her mother had the latter survived the testatrix?
Appellant here, ■ while admitting that the word “devise,” or “devised,” as used in the statute at common law and in ordinary acceptation, applies to real property, yet contends that what they term a “more modern meaning” should be applied, so that the term should also comprehend the disposition of personal property. In other words, appellant takes the position that the words “devised” and “devisee” should be given such a scope of meaning as to include that comprehended by the words “legacy” and “legatee.” In furtherance of the contention they refer us to a line of decisions where courts have announced that view.
In the case of Rountree, Administratrix, v. Pursell et al., 11 Ind. App. 522, 39 N. E. 747, it was held that the word “devise” usually relates to real estate acquired through a will; that it is a gift by will of real estate, and cannot be applied with legal precision to personal [451]*451property. A bequest, on the other hand, is a gift by will of personal property; but, says the court:
“In order to favor the manifest intent of the testator, * =:= * the courts often construe the word ‘bequest’ to mean ‘devise,’ and ‘devise’ to mean ‘bequest.’ ”
The reasoning there followed by the court might have proper application where, as in the State of Indiana, the legislature had used the terms “devise” and “bequeath” or “bequest” and “devise” more or less indiscriminately or interchangeably, at least to such an extent that the court was justified in saying that:
“Whilst some confusion exists in the terms used, we think it clear that the enactment governs the descent of real estate as well as the distribution of personalty. This much is clear: That when personal property has reached that point when the law undertakes to divide it among the persons entitled to it, it shall be divided in the same manner and into the same parts, and to the same persons that real estate is divided when it descends. We have no other statute in this state regulating the distribution of the surplus of the estate of an intestate. And we have no other enactment regulating the descent of the real estate of an intestate. Descent and distribution are combined in the same act.”
In the case of Logan v. Logan, 11 Colo. 44, 17 Pac. 99, the Supreme Court of Colorado had under consideration the question here presented, and there held that “legacies and bequests” as used in the statute embraced “devises.” It will be noted, however, that the court in arriving at this conclusion did so by reason of the acts of the legislature of the State of Colorado and an indiscriminate use of the terms by that body. The court said:
“Our legislature has not always used these words in their strict legal sense, which fact of itself would authorize us to inquire in what sense they were employed in the present instance. Section 3481, Gen. St., empowers testators to devise all their estate in ‘lands, tenements, hereditaments, annuities, or rents [452]*452charged upon or issuing out of them, or goods and chattels and personal estate of every description whatsoever, by will or testament.’ ”
The court concludes its reasoning in the following:
“No violence is done by giving the words referred to the enlarged application which the authorities above referred to hold to be admissible, and which the framers of these statutes have themselves applied.”
What was the intention of our legislature when it used the words “devised” and “devisee” in section 6219 ?
It will be noted that in section 4 of the act (section 6205, Revised Laws, 1912) the terms “devises,” “legacies,” and “gifts” are specifically made use of. In section 19 of the act (section 6220, Revised Laws, 1912) we find the legislature making specific and correct use of the words “devisee” and “devisor.” Nowhere in the act do we find an interchangeable or indicriminate use of the terms here referred to, but in each instance the terms appear to be correctly used, and used in the same sense as was customary at common law.
2. Where a statute uses a word without specific definition which is well known and had a definite sense at common law, it will be presumed to be used in its common-law sense, and will be so construed unless it clearly appears that it was not so intended. (2 Lewis’s Sutherland, Stat. Const., 757, 2d ed.)
3. It will not be gainsaid, we apprehend, that the word “bequeath” is one generally used to express a gift of personalty made in a last will or testament. The word “devise” is a term generally used to express a gift of realty made by last will or testament. That these terms have been by the courts construed in some instances to have interchangeable significance takes sanction rather from the use made of the terms by the legislative bodies of the respective states where such construction has been applied. (In Re Campbell’s Estate, 27 Utah, 361, 75 Pac. 851; Evans v. Price, 118 Ill. 593, 8 N. E. 854.)
4. It is, we think, a general principle that technical [453]*453words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import. This rule, however, has its exception where words are used to express convertible terms in a statute, and where a court, seeking to carry out the will of the legislative body, applies to the terms the meaning that will give the most unrestricted scope to the enactment.
In the case of Desloge v. Tucker, 196 Mo. 587, 94 S. W. 283, the Supreme Court of Missouri, having under consideration the force and effect of a statute wherein it was provided that, on filing of petition for sale of real estate of a decedent, notice be published, provided, that where the heirs or “devisees” are residents of the county, notice shall be served on each, held, that the word “devisees” does not include legatees.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court,
McCarran, J.,
after stating the facts:
1. It may, we think, be properly stated that but one question is presented in this appeal, and that a question of construction and application of a statutory provision.
The law of this state concerning wills was enacted by the legislature of 1862, and, with but one slight [450]*450exception, has remained since unamended, and is handed down to us in our Revised Laws practically in its original form and verbiage. Our law in this respect is found from sections 6202 to 6222, inclusive, Revised Laws of 1912. It is with section 18 of the act (section 6219, Revised Laws) that we have to deal in the matter at bar:
“When any estate shall be devised to any child or other relation of the testator, and the devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate so given by the will, in the same manner as the devisee would have done if he would have survived the testator.”
Under the provisions of this statute, we are asked the question: Did Harriet B. Cunningham, or Harriet E. Bailey as she is now known, as the daughter of Hattie Cunningham, deceased, a beneficiary under the will of Jennie Lewis, take that part of the residue of the estate of Jennie Lewis consisting of personal property which would have passed to her mother had the latter survived the testatrix?
Appellant here, ■ while admitting that the word “devise,” or “devised,” as used in the statute at common law and in ordinary acceptation, applies to real property, yet contends that what they term a “more modern meaning” should be applied, so that the term should also comprehend the disposition of personal property. In other words, appellant takes the position that the words “devised” and “devisee” should be given such a scope of meaning as to include that comprehended by the words “legacy” and “legatee.” In furtherance of the contention they refer us to a line of decisions where courts have announced that view.
In the case of Rountree, Administratrix, v. Pursell et al., 11 Ind. App. 522, 39 N. E. 747, it was held that the word “devise” usually relates to real estate acquired through a will; that it is a gift by will of real estate, and cannot be applied with legal precision to personal [451]*451property. A bequest, on the other hand, is a gift by will of personal property; but, says the court:
“In order to favor the manifest intent of the testator, * =:= * the courts often construe the word ‘bequest’ to mean ‘devise,’ and ‘devise’ to mean ‘bequest.’ ”
The reasoning there followed by the court might have proper application where, as in the State of Indiana, the legislature had used the terms “devise” and “bequeath” or “bequest” and “devise” more or less indiscriminately or interchangeably, at least to such an extent that the court was justified in saying that:
“Whilst some confusion exists in the terms used, we think it clear that the enactment governs the descent of real estate as well as the distribution of personalty. This much is clear: That when personal property has reached that point when the law undertakes to divide it among the persons entitled to it, it shall be divided in the same manner and into the same parts, and to the same persons that real estate is divided when it descends. We have no other statute in this state regulating the distribution of the surplus of the estate of an intestate. And we have no other enactment regulating the descent of the real estate of an intestate. Descent and distribution are combined in the same act.”
In the case of Logan v. Logan, 11 Colo. 44, 17 Pac. 99, the Supreme Court of Colorado had under consideration the question here presented, and there held that “legacies and bequests” as used in the statute embraced “devises.” It will be noted, however, that the court in arriving at this conclusion did so by reason of the acts of the legislature of the State of Colorado and an indiscriminate use of the terms by that body. The court said:
“Our legislature has not always used these words in their strict legal sense, which fact of itself would authorize us to inquire in what sense they were employed in the present instance. Section 3481, Gen. St., empowers testators to devise all their estate in ‘lands, tenements, hereditaments, annuities, or rents [452]*452charged upon or issuing out of them, or goods and chattels and personal estate of every description whatsoever, by will or testament.’ ”
The court concludes its reasoning in the following:
“No violence is done by giving the words referred to the enlarged application which the authorities above referred to hold to be admissible, and which the framers of these statutes have themselves applied.”
What was the intention of our legislature when it used the words “devised” and “devisee” in section 6219 ?
It will be noted that in section 4 of the act (section 6205, Revised Laws, 1912) the terms “devises,” “legacies,” and “gifts” are specifically made use of. In section 19 of the act (section 6220, Revised Laws, 1912) we find the legislature making specific and correct use of the words “devisee” and “devisor.” Nowhere in the act do we find an interchangeable or indicriminate use of the terms here referred to, but in each instance the terms appear to be correctly used, and used in the same sense as was customary at common law.
2. Where a statute uses a word without specific definition which is well known and had a definite sense at common law, it will be presumed to be used in its common-law sense, and will be so construed unless it clearly appears that it was not so intended. (2 Lewis’s Sutherland, Stat. Const., 757, 2d ed.)
3. It will not be gainsaid, we apprehend, that the word “bequeath” is one generally used to express a gift of personalty made in a last will or testament. The word “devise” is a term generally used to express a gift of realty made by last will or testament. That these terms have been by the courts construed in some instances to have interchangeable significance takes sanction rather from the use made of the terms by the legislative bodies of the respective states where such construction has been applied. (In Re Campbell’s Estate, 27 Utah, 361, 75 Pac. 851; Evans v. Price, 118 Ill. 593, 8 N. E. 854.)
4. It is, we think, a general principle that technical [453]*453words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import. This rule, however, has its exception where words are used to express convertible terms in a statute, and where a court, seeking to carry out the will of the legislative body, applies to the terms the meaning that will give the most unrestricted scope to the enactment.
In the case of Desloge v. Tucker, 196 Mo. 587, 94 S. W. 283, the Supreme Court of Missouri, having under consideration the force and effect of a statute wherein it was provided that, on filing of petition for sale of real estate of a decedent, notice be published, provided, that where the heirs or “devisees” are residents of the county, notice shall be served on each, held, that the word “devisees” does not include legatees.
The statute of the State of California, as enacted in 1872 and for many years prevailing in that state, was quite analogous to our statute here under consideration. (Section 1310, Civil Code of California, 1903.)
In the Matter of the Estate of Ross, 140 Cal. 288, 73 Pac. 978, the supreme court of that state held that the statute did not apply to legacies, but simply to devises. There the court took occasion to remark:
“In the whole chapter on Wills (Civ. Code, secs. 1270-1377) the legislature has, with extreme care and technical accuracy, used the terms ‘devise’ and ‘legacy’ in their well-recognized common-law sense and distinction; the one as a testamentary disposition of land, the other a like disposition of personalty.”
The court referred to the intendment of the legislature as made manifest by the several sections of the act wherein the terms “devise” and “devisee” and “legacy” and “legatee” were used “with legal exactness,” and hence with the intention to employ them precisely as defined at common law. In that case the court applied the rule which we think applicable to the matter at bar:
“Where clear, direct, and explicit terms are used by the legislature, which have had a definite meaning since [454]*454the beginning of common-law terminology, there can be no room for discussion as to their meaning. Time has marked them too distinctly not to be clearly recognized and understood.”
The court in that case commented on the fact that the legislature should have limited the application of section 1310 to devises alone, and refers to the fact that the act concerning wills as passed by the first session of the legislature of the State of California in 1850 set forth this section the same as it stood in the code in 1903.
It may not be out of place to remark here parenthetically that, inasmuch as many of the members of our territorial legislature of 1862 were former residents of the State of California, and as much of the statute law found to have been enacted by that session had its prototype in the State of California, it is not unreasonable to suppose that this section was taken, in substance, at least, from the statute of that state.
The decision of the Supreme Court of California in the Matter of the Estate of Ross was followed by a specific enactment of the legislature of the State of California, wherein the statute passed upon in that case was amended in 1905, and section 1310 of the Civil Code of California now reads:
“When any estate is devised or bequeathed to any child, or other relation of the testator, and the devisee or legatee dies before .the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee or legatee would have done had he survived the testator.”
In the Matter of the Estate of Claus Spreckels (Coffey’s Prob. Dec. vol. 5, p. 348), Judge Coffey, referring to the original as well as to the amended statute of the State of California, commenting on the decision of the Supreme Court of California in the Ross case, supra, emphasized the assertion that the statute of California as it stood at the time of the decision in the Ross case admitted of no other construction, inasmuch as the use of the terms “devise” and “devisee,” “legacy” and “legatee,” [455]*455all through the chapter on wills with legal exactness exhibited the intention of the legislature to employ them precisely as defined at common law, and hence the word “devise” as used in the former statute of California in the chapter pertaining to wills applied only in its common-law acceptation, and hence affected realty rather than personalty.
We are asked to give to the word “devise” a more' modern significance, in order that it may apply interchangeably with the word “bequeath.” Indeed, if we had the power of legislation, we might so declare, but such function is not ours. While we may be at a loss to know why the act of the legislature was so worded, we cannot change the words or alter the policy. It has stood all of these years unamended, and we are bound to construe the term in accordance with the intendment of that branch of the government as best we may ascertain that which was the intendment.
The authorities found on the subject are quite well divided; the one line holding strictly to a common-law interpretation of the terms here involved; the other, giving the terms interchangeable significance, base their reasoning upon the intention of the legislature as expressed in the several legislative enactments.
As was indicated in the Ross case by the Supreme Court of California, so here we may say, if our legislature by the language used in the act pertaining to wills had used the terms “devise” and “bequeath” indiscriminately or with interchangeable meaning, we would be inclined to follow that line of decisions which holds that the term “devise” may comprehend a conveyance by will of personalty as well as realty. But the legislative intendment is our lodestar in applying and construing statutory enactments, and we find nothing in this statute that would cause us to believe that the legislature used the term in other than its common-law significance.
The decree of the lower court must be affirmed.
It is so ordered.