application of a minor grandchild of the testator, and a petition in which she claimed to be a pretermitted heir was received the devisees under the will claimed that the petitioner was amply provided for by the section of the Code which provided that a lineal descendant of a devisee of a will, who was a child or relative of the testator, would take the estate in the same manner as the devisee would have taken had he survived the testator. The court held, however, that throughout the chapter on wills the words, "devise" and "legacy," are used in their technical meaning; the word "devise" meaning a testamentary disposition of land, while the other means a like disposition of personalty. The court said: "It is, however, insisted by appellants that respondent's rights in the estate are measured by the provisions of that section, but come within the terms of § 1310 of said Code, which reads: 'When any estate is devised to any child, or other relation of the testator, and the devisee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will, in the same manner as the devisee would have done had he survived the testator.' According to appellant's construction of the will, in the light of the latter section, Joseph L. Ross, the son, was provided in his father's will with a legacy which, even if he was dead when the will was made, was nevertheless valid, and that by virtue of § 1310 such legacy went to his daughter, and hence, taking this legacy under the will as a lineal descendant of her father, she was thus provided for in the testator's will. It is of no moment to discuss the matter of the validity or invalidity of the legacy of the testator to his son, who was dead when the will was made. In the view we take of the case that question becomes unimportant, as we are satisfied that § 1310 has no application, in determining the right of respondent to an interest in her grandfather's estate. If the legacy to the son was valid under the will, it was still simply a legacy, and § 1310 does not apply to legacies, but solely to devises. In the whole chapter on wills

(Civ. Code, §§ 1270-1377), the legislature has, with extreme care and techical 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. And, to accentuate the proposition that the term 'devise' is technically used, it is provided by § 1343 of the same Code that 'if a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in § 1310.' It is obvious that the terms, 'devisee' and 'legatee,' are used in this section with legal accuracy and distinctiveness, and with the same accuracy the exception is limited in § 1310 to a devise. Under § 1343, all devises or legacies lapse, if the devisee or legatee dies before the testator, except as protected and secured by § 1310 to the lineal descendants of any child, or other relation of the testator. This protection, however, by the explicit language of § 1310, is extended solely to devises; legacies are not within its terms. The use of these terms, 'devise' and 'devisee,' legacy' and 'legatee,' all through this chapter, with legal exactness, exhibits the intention of the legislature to employ them precisely as defined at common law. 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. It is strange that the legislature should have limited the application of § 1310 to devises alone, but the limitation has always existed in this state. In the 'Act Concerning Wills,' passed at the first session of the legislature in 1850, the section is found the same as it stands in the Code to-day. Stat. 18491850, p. 179. Throughout all these years no change has taken place, and even when adopting the Code system in this state, although the present chapter on wills was modeled largely

after a similar chapter in the New York Civil Code, the legislature adhered to the exact language in the Act of 1850, although the New York Code on the same subject provides for both legacies and devises." But in Re Pfuelb (1873) Myrick, Prob. Ct. Rep. (Cal.) 38, wherein the same section was under construction, the court held that, although the term "devise" generally relates to the disposition of realty, it is not necessarily exclusive. It was said: "The executor resists the application on two grounds: First, that under § 1310, Civ. Code, the term 'devise' limits the application of the section to real estate. . The first

point is not well taken. The word 'devise' is generally applied to passing real estate by will, but is not necessarily exclusive."

In Leighton v. Sheldon (1870) 16 Minn. 243, Gil. 214, an action for trover was instituted because of the refusal of the warehouseman to deliver goods which were claimed by a married woman as legatee thereof under a statute (Gen. Stat. §§ 2, 3, chap. 69) which provided as follows: "Sec. 2. Any person capable in law of making a deed or will, including the husband, may convey, devise, or bequeath to any married woman any property or estate to be held by her, without the intervention of a trustee, to her sole and separate use, free from the control or interference of her husband, such conveyance containing a power of disposition by deed, will, or otherwise. Sec. 3. Whenever any property is secured to the sole and separate use of a married woman, or conveyed, devised, or bequeathed to her, pursuant to any of the foregoing provisions, she shall, in respect to all such property, and the rents, issues, and profits thereof, have the same rights and powers, and be entitled to the same remedies in her own name, and be subject to the same obligations, as a feme sole. She may convey or demise the same, except as provided in § 1, without the consent of her husband, and without joining with him in any deed of conveyance of such property," etc. It was contended that the statute applied only to real prop

erty. The court impliedly held that the words, "devise" and "bequeath," were used in their technical sense, saying: "It was suggested on the argument by the appellant that §§ 2 and 3, chap. 69, Gen. Stat., have reference only to real property; but we think that use of the word 'bequeath' shows that they relate to personal property also."

In a New York case, it appeared that a devise was made to a charitable institution which was organized under a special act, and was "authorized to take and hold, by gift, purchase, devise, or otherwise, subject to all provisions of existing laws in relation to devises by last will and testament, . . . and shall be entitled to all the provisions and privileges of law relating to charitable institutions." The next of kin claimed that the word "devise" related to personalty as well as to realty, and therefore came within the provisions of a section of the statute for the incorporation of benevolent and charitable organizations (Act of 1848, § 6), which invalidated bequests contained in a will which had not been made and executed at least two months prior to the death of the testator. It was held, however, that the word "devise," when used in a statute would not be construed to include a bequest in order to restrict a privilege granted unless such an intention was clear. The court said: "Two provisions of the Act of 1869 are relied on to make the Act of 1848 applicable: First, that the authority to take, given by the Act of 1869, being made subject to all provisions of existing laws in relation to devises by last will and testament, it was the intention to include the provision of law regulating bequests, so that the word 'devise' should be considered to mean any gift of property, either real or personal, by a last will and testament. 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 (Bouvier's Law Dict.) And although the courts have, in order to give effect to a 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 (1894) 31 Abb. N. C. 422, 30 N. Y. Supp. 342.

In Sherwood v. American Bible Soc. (1864) 4 Abb. App. Dec. (N. Y.) 227, 1 Keyes, 561, it appeared that several legacies were bequeathed to different bodies. Two of these bodies were incorporated, and the question arose whether the statute prohibiting a corporation unless authorized by its charter or statute, to take by devise (2 Rev. Stat. p. 57, § 3, now § 12, Decedent Estate Law, 13 McKinney, Consol. Laws, p. 42), applied to a bequest. It was impliedly held that the word 'devise' was used in its technical sense, the court saying: "In the statute enumeration of the general powers of all corporations is that of holding, purchasing, and conveying such real and personal estate as the purposes of the corporation may require, with the power to hold and purchase property. All other powers necessary to its exercise are given. 1 Rev. Stat. p. 599, §§ 1, 3. This includes the power of taking by all the usual methods of acquiring property not forbidden to corporations by the statute. The Statute of Wills prohibits them from taking lands by devise unless expressly authorized by their charters, or by statute (2 Rev. Stat. p. 57, § 3), but there is no statute imposing any prohibition in respect to the manner of their acquiring personal property. The same legislature which enacted the statute concerning corporations enacted the prohibition in the Statute of Wills; but, unless the power to take lands by devise was embraced in the statutory grant of powers to corporations, the enactment of the prohibition was unnecessary. It was, I think, embraced, hence the necessity of the prohibition; and the inference is irresistible that the same grant of power vested in corporations the capacity of taking a pecuniary gift by will."

In Roth's Appeal (1880) 94 Pa. 186,

it appeared, among other things, that two judgments had been rendered against a son, prior to the father's death intestate. Subsequent to his death, attachments were issued on all moneys, property, legacies, or right to title and interest of the judgment debtor, and the administrator was garnished. Subsequently, another judgment was rendered against the son, to satisfy which the son's, interest in his father's property was sold, and the proceeds were paid into court for distribution. The question, therefore, became material as to the priority of the claims. The court held, among other things, that a statute (§ 10, Act of April 13, 1843, P. L. 235) which subjected all legacies given and lands devised to attachment or levy did not confound the meaning of "legacy" and "devise." It was said: “Section 10, Act of April 13, 1843, P. L. 235, subjects all legacies given and lands devised to any person, and any interest which any person may have in real or personal estate of any decedent, by will or otherwise, in the hands or possession of the executor or administrator, or in whosesoever hands the same may be, except legacies and distributive shares due married women, to attachment and levy in satisfaction of any judgment in the same manner as debts due are made subject to execution by the 22d section of the Act of The June 16, 1836, P. L. 765. statutes have not confounded legacies and devises, nor the respective interests of one in the realty and personalty of an intestate, but have made each and all liable to attachment upon execution in satisfaction of a judgment. 'Legacies given' and 'lands devised' are artistic phrases, meaning different things, and neither includes the other. And so an interest in the goods and chattels of an intestate is quite different from an interest in his lands."

In Pratt v. McGhee (1882) 17 S. C. 428, it appeared that a testator had devised a certain tract of land to his son, who predeceased him, leaving issue surviving. The heirs at law thereupon instituted an action of partition, on the ground that the devise to the deceased son lapsed by the son's prior

death. The children of the deceased son and the executor contended, however, that devises of real property were embraced by a statute (Gen. Stat. 444, § 13, chap. 86), which provided "that if any child should die in the lifetime of the father or mother, leaving issue, any legacy given in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children, by the father or mother when living." It was held, however, that the legislature clearly intended to use the word "legacy" in its technical sense, the court saying: "After a careful examination of the entire Act of 1789, which contains many sections, and a like careful examination and comparison of chap. 86, Gen. Stat. 444, with its many clauses and sections, we are constrained to conclude that the legislature used the word 'legacy' in its technical legal sense, and no other. In the sections which precede and follow this clause, both in the old and new act, the terms, 'devise,' 'bequest' and ‘legacy,' are used invariably in this strictly technical sense, the word devise being in each section made to refer to a gift of realty, and the words 'legacy' and 'bequest' to gifts of personalty. It thus appears that these words are nowhere in these acts used as synonymous terms, but always with an appropriate distinction and legal significance. The terms were well understood by the legislatures which, at the two periods separated by nearly a century, used them throughout with the closest regard to their respective differences and technical meaning. In no section of either act would the sense be retained by substituting one of these words for the other, or by enlarging one so as to embrace the other. Why, then, should we conclude that in this single section the legislature inadvertently used the word 'legacy' in an untechnical sense, and intended to imply thereby a gift of realty (a devise) as well as of personalty, when in all other sections the true distinction is carefully preserved? We know of no canon of construction which, when brought to bear upon this entire act, will conduct us

to such a conclusion. We are told that there is no reason why the legislature should intend to save a legacy from lapsing, which would not more strongly induce that body to likewise preserve a devise of real estate to the issue of a predeceased child; and that, therefore, we must conclude that by the term 'legacy' in this clause a devise is likewise meant. But as the question is not what the legislature ought to have intended, but what they did intend, we must examine the whole context of the act to ascertain that intention. Such examination demonstrates the fact that in every other clause of the act a gift of real estate is styled a devise, a gift of personal estate is called a legacy or bequest, and a gift of both real and personal property is entitled a devise and bequest."

In Re Davis (1899) 103 Wis. 455, 79 N. W. 761, it appeared that a few hours prior to a testator's death he made a nuncupative will, which was later reduced to writing. At the probate of the will the question arose whether the will affected the real estate of the deceased. The court held that the statute (§ 2292) providing that "no nuncupative will shall be good, when the estate bequeathed shall exceed the value of $150, that is not proved," referred merely to the disposition of personal property, and the word "devise," in the other sections of the statute, to real property. The court said: "The only question for consideration is whether the words so spoken, and constituting the nuncupative will of the deceased, were effectual to pass the income of the real estate to the widow. The statute declares, in effect, that the owner of 'lands,' or of any interest therein, 'may devise and dispose of the same by last will and testament in writing; and all such estate not disposed of by will shall descend as the estate of an intestate,' etc. Stat. 1898, § 2277. This includes the right to 'devise' the homestead. § 2280. The statute also declares that "the word "land," or "lands," and the words, "real estate," and "real property," shall be construed to include lands, tenements and hereditaments