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"All the rest and residue of my property, of every kind and character, wheresoever situated, which I may own or possess at the time of my death, I give and bequeath to Mrs. Hattie Cunningham and her daughter Hattie, residing at 2220 Webster avenue, in the city of Mattoon, in the state of Illinois."

All matters and things essential to the due carrying out of the administration having been accomplished, the administratrix with the will annexed filed her petition for the distribution of the said estate, and on the 28th day of May, 1915, filed an amended petition for distribution. In the said amended petition for distribution, it was alleged "that by the terms of said will Mrs. Hattie Cunningham is named as a residuary devisee and legatee, and, as this administratrix is informed and believes and alleges the fact to be, that the real name of the said devisee and legatee is Harriet B. Cunningham, and that she died prior to the death of the testatrix, Mrs. Jennie Lewis. That by the terms of said will, one of the residuary devisees and legatees named and designated therein as Hattie, the daughter of said Mrs. Hattie Cunningham, is, as this administratrix is informed and believes and alleges the fact to be, Mrs. Harriet E. Bailey, residing at No. 6,845 Euclid avenue, in the city of Chicago, state of Illinois; that she was sometimes called and known as Hattie Cunningham, and that she was known to the decedent by the name of Hattie, and that she is the only child and sole heir of said Harriet B. Cunningham, designated in said will as Hattie Cunningham. That this administratrix is informed and believes and alleges the fact to be that the said Mrs. Harriet E. Bailey is a second cousin of the said deceased, Jennie Lewis. That the next of kin of said Jennie Lewis, whom your petitioner is advised and believes and therefore alleges to be the heirs at law of said testatrix, are Eliza Johnston, a sister, residing at Sullivan, Moultrie county, state of Illinois;

Charles Johnston, a brother, residing at Reno, Nevada; and Robert Johnston, whose residence is unknown, a son and only heir of Robert Johnston, a deceased brother of said Jennie Lewis, deceased."

Pursuant to the prayer of the petitioner for distribution, the court found and decreed "that the said Harriet E. Bailey is entitled to have distributed to her, as a residuary devisee and as sole heir to the estate of Harriet B. Cunningham, all of the residue of the real estate belonging to the the estate of said Jennie Lewis, deceased. That she is entitled to have distributed to her one half of the residue of the personal property belonging to said estate of Jennie Lewis, deceased. That by reason of the death of said Harriet B. Cunningham, prior to the death of said Jennie Lewis, deceased, all the right, title, and interest bequeathed to her by said will as a residuary legatee of the estate of Jennie Lewis, deceased, lapsed, and the said Jennie Lewis, as to one half of the residue of the personal property of her estate, died intestate."

Written objection having been filed to the amended petition for final distribution prior to the rendition of the decree, she appeals from said decree of distribution to this court.

Messrs. Hoyt, Gibbons, & French, for appellant:

The words, "bequest and devise," are now used indifferently and interchangeably in the construction of wills and statutes.

Borgner v. Brown, 133 Ind. 391, 33 N. E. 92; Rountree v. Pursell, 11 Ind. App. 522, 39 N. E. 747; Evans v. Price, 118 Ill. 593, 8 N. E. 854; People's Trust Co. v. Smith, 82 Hun, 494, 31 N. Y. Supp. 519; Re Campbell, 27 Utah, 361, 75 Pac. 851; People use of Brooks v. Petrie, 191 Ill. 497, 85 Am. St. Rep. 268, 61 N. E. 499; Logan v. Logan, 11 Colo. 44, 17 Pac. 99.

Mr. James T. Boyd for respondent. McCarran, J., delivered the opinion of the court:

1. It may, we think, be properly stated that but one question is pre

(39 Nev. 445, 159 Pac. 961)

sented 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 exception, 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 §§ 6202 to 6222, inclusive, Revised Laws of 1912. It is with § 18 of the act (Rev. Laws, § 6219) 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 v. Pursell, 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 property. 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.'

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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. Stat., empowers testators to devise all their estate in 'lands, tenements, hereditaments, annuities, or rents charged 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 § 6219?

It will be noted that in § 4 of the act (Revised Laws 1912, § 6205) the terms, "devises," "legacies," and "gifts," are specifically made use of. In § 19 of the act (Revised Laws 1912, § 6220) 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 indiscriminate 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. Constr. 2d ed., 757.

Statuteconstructionuse of commonlaw word.

Definitionbequeath.

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 -devise.
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 bod-
ies of the respective states where
such construction has been applied.
Re Campbell, 27 Utah, 361, 75 Pac.
851; Evans v. Price, 118 Ill. 593, 8
N. E. 854.

Statute

technical words.

4. It is, we think, a general principle that technical words and phrases having peculiar and appro- construction— priate 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. Cal. Civ. Code 1903, § 1310.

In Re 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, §§ 1270-1377) the legislature has, with extreme care and technical accuracy, used the terms, 'devise' and 'legacy,' in their well-recognized common-law sense

(39 Nev. 445, 159 Pac. 961)

and distinction; the one as a testamentary disposition of land, and 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 the 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 § 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 Re 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 § 1310 of the Civil Code of California now reads: "When any estate is devised or bequeathed to any child, or other relation of the testa

tor, 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 Spreckels's Estate, 5 Cof. Prob. Dec. (Cal.) 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," all 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 Courts-power legislature was SO to change worded, we cannot

statute.

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 commonlaw interpretation of the terms here involved; the involved; the other, giving the terms interchangeable significance, base their reasoning upon the intention of the legislature as expressed

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"Devise" or "devisee" in statute as including "legacy" or "legatee," or vice

Majority rule.

versa.

By the weight of authority, unless it clearly appears that the legislature intended otherwise, the words, "devise," "devisee," "legacy," or "legatee," as used in the statute, are deemed to have been used in their technical sense, and are not construed as interchangeable.

United States. Baldwin v. Eidman (1913) 202 Fed. 968, reversed on another ground in (1913) 124 C. C. A. 310, 206 Fed. 428.

California.-Re Ross (1903) 140 Cal. 282, 73 Pac. 978. Compare Re Pfuelb (1873) Myrick, Prob. Ct. Rep. 38.

Minnesota. Leighton V. Sheldon (1871) 16 Minn. 243, Gil. 214.

Missouri.-Desloge v. Tucker (1906) 196 Mo. 587, 94 S. W. 283.

New York.-People's Trust Co. v. Smith (1894) 31 Abb. N. C. 422, 30 N. Y. Supp. 342; Sherwood v. American Bible Soc. (1864) 4 Abb. App. Dec. 227, 1 Keyes, 561.

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Appeal

South Carolina.-Pratt v. McGhee (1882) 17 S. C. 428.

Vermont.-Probate Ct. v. Matthews (1834) 6 Vt. 269.

Wisconsin.-Re Davis (1899) 103 Wis. 455, 79 N. W. 761.

In Baldwin v. Eidman (Fed.) supra, an action to recover a tax paid under protest, it appeared that the Collector of Internal Revenue assumed to assess and collect a tax by virtue of the

Spanish War Revenue Act, on certain leasehold interests of which a testator died seised. The executors claimed that the statute applied only to personalty. The court, after holding that a leasehold interest was personal property, held that the provision levying a tax on "legacies" arising from personal property applied only to personal property. It was said: "The expres sion 'legacy' means a bequest of personal property. Orton v. Orton (1867) 3 Keyes (N. Y.) 486. Therefore, had the statute eliminated the expression, 'arising from personal property,' it might possibly have been argued that the common-law definition of 'leasehold' must be accepted, and that, a leasehold being a chattel real at common law, it passed to the personal representatives, and not to the heirs (2 Bl. Com. chap. 9, p. 142; 2 Kent, Com. p. 342); and therefore, whether by way of legacy or distributive share, was taxable because personal property. But when Congress added the words, 'arising out of personal property,' it clearly meant that the source of the legacy or share must be personal property, and not real estate, and that interests arising out of real estate should be treated on a different basis in the Act of 1864 from those arising out of personalty, and should be excluded from the Act of 1898, because not needed for revenue purposes."

In Re Ross (Cal.) supra, a decree of distribution was set aside on the

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