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isee,' are often used as interchangeable terms in wills and everyday conversation, and therefore courts would not feel fettered to any nice construction where subject-matter or context shows the words were used interchangeably, and as of the same import. But such popular and loose construction is hardly permissible in view of the statutory rule of hermeneutics. Revised Statutes 1899, § 4160. Thus: 'The construction of all statutes of this state shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute: First, words and phrases shall be taken in their plain or ordinary and usual, sense, but technical words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import.""

Minority rule.

In some jurisdictions it has been held that the words "devise," "bequeath," "devisee," and "legatee" as used in a statute are to be construed as interchangeable. Logan v. Logan (1887) 11 Colo. 44, 17 Pac. 99; Evans v. Price (1886) 118 Ill. 593, 8 N. E. 854; Barry v. Barry (1875) 15 Kan. 587; RE BREEN (reported herewith) ante, 238; Freme v. Clement (1881) L. R. 18 Ch. Div. (Eng.) 499, 50 L. J. Ch. N. S. 801, 44 L. T. N. S. 398, 30 Week. Rep. 1; Barrington v. Liddell (1882) 2 De G. M. & G. 480, 42 Eng. Reprint, 958, 17 Jur. 241, 22 L. J. Ch. N. S. 1, 17 Eng. L. & Eq. Rep. 188. See also Hope v. Taylor (1825) 2 Ld. Kenyon, 9, 96 Eng. Reprint, 1089; Shep. Touch. 400.

In Logan v. Logan (1887) 11 Colo. 44, 17 Pac. 99, it appeared that the widow of a testator elected to renounce the devise to her, and claimed one half of the estate of which her husband died seised. The question became material whether the words, "bequest" and "legacy," which were used in the section which provided for the division of the remainder of the estate between the legatees after the widow had renounced her bequest or legacy, were used in their technical sense, or whether they were used in


terchangeably with "devise." court held that the legislature used them interchangeably, and therefore the terms, "legacy," "bequest," or "legatee," included "devise" and "devisee." It was said: "The counsel's attention was called by opposing counsel to the provisions of § 3627, chap. 115, General Statutes, viz.: 'In all cases where the widow shall renounce all benefit under the will, and the legacies and bequests therein contained to other persons shall, in consequence thereof, become increased or diminished in amount, quantity or value, it shall be the duty of the court, upon the settlement of such estate, to abate from or add to such legacies and bequests in such manner as to equalize the loss sustained, or advantage derived thereby, in a corresponding ratio to the several amounts of such legacies and bequests, according to the intrinsic value of each.' To this it was replied that the section quoted has nothing to do with the question in controversy, for the reason that the terms, 'legacy' and 'bequest,' according to their well-defined meaning at law, refer to gifts by will of personal property, and not of real estate; that this statute refers to a subject-matter purely personal, whereas the controversy arises upon a devise which is a gift of real estate. The controversy depends upon the proper construction of the latter section. If the words, 'legacies' and 'bequests,' as used therein, relate to gifts by will generally, the section clearly indicates the legislative intent that wills are to be upheld, notwithstanding the renunciations of their provisions by widows of testators, as to all gifts of property thereby made to other persons, save only as to the pro rata change in 'amount, quantity, or value' produced by the renunciation. It is true that in their strict legal application the terms, 'legacy' and 'bequest,' refer to gifts by will of personal estate. There is nothing in the derivation of these words to so distinguish them, but such is their proper legal signification, as all authorities agree. It is a conceded fact, however, that they are not always employed according to their technical

meaning, and that they are not al-
ways to be so construed.
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 em-
ployed in the present instance. Sec-
tion 3481, General Statutes, empowers
testators to devise all their estate in
'lands, tenements, hereditaments, an-
nuities, or rents, charged upon or is-
suing out of them, or goods and chat-
tels and personal estate of every
description whatsoever, by will or tes-
tament.' Section 2269 permits a
married woman to make a will, but
provides that 'she shall not bequeath
away from her husband more than
one half of her property, both personal
and real, without his consent in writ-
ing.' It will be observed in the for-
mer section the word 'devise' is ap-
plied to gifts of both real and personal
estate, and in the latter the word 'be-
queath' is used in the same sense.
... In seeking, then, for the sense
in which these words were used in the
present instance, the first essential to
a proper construction of the section
is easily acquired, viz., a clear idea of
the object in view. A previous section
authorizes the widow to partially de-
feat the provisions of the will in cer-
tain cases.
The power to interfere

extends to the entire estate of the
testator, real and personal. The plain
purpose of this section was to author-
ize the courts to treat the various pro-
visions of the will as modified, to the
extent of the derangement, in order
to preserve, as to the balance of the
estate not taken by the widow, the
same ratio of distribution thereof
among the donees, so far as values
are concerned, as fixed by the terms
of the will. That this was the evil to
be remedied, and the object and pur-
pose of the section, is patent upon its
face. Now it is apparent this pur-
pose cannot be accomplished by such
an interpretation of doubtful words
as will limit the remedy to one class
of property, which often comprises an
insignificant part of an estate.


remedy being provided for "all cases. where the widow shall renounce all benefit under the will,' and 'loss is

sustained, or advantage derived thereby,' by the donees, the construction contended for would very clearly be in conflict with the intent apparent on the face of the section, and legitimately collectable from the general context. While courts have nothing to do with the policy of an act of the legislature, and no right of control over the motives of legislators, it is their duty to carry into effect their intentions, where they can be definitely ascertained. We have here, as guides to the intention, the object in view, and likewise the cause or necessity of enacting the law. The statutes are to be construed with reference to the objects to be accomplished by them; and where a particular construction would lead to unreasonable results, a different construction is to be given, if it can be done without doing violence to the letter of the statute. 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. Our conclusion is that the provisions of the section are applicable alike to all classes of property, and to all legatees and devisees."

In Evans v. Price (1886) 118 Ill. 593, 8 N. E. 854, it appeared that the widow of a testator renounced the provisions of the will in her favor. The complainant herein, who was made remainderman in the will, claimed a one-half interest in the lands of which the testator died seised, and prayed for a partition thereof. It was contended that the section which permitted a widow or surviving husband of a testator to renounce the provisions of a will applied only to legacies or bequests, but she might claim all the devises. It was held, however, that while ordinarily the word "devise" was employed to denote a gift by will of realty, and "bequest," a gift of either personalty or realty, still the statute seemed to have used them as convertible terms. The court said: "It is also said, in argument, that § 78 only requires the widow to renounce all claim to the legacies and bequests,

and that she might, therefore, claim all the devises, and, having renounced all legacies and bequests, claim all benefits given by that section. This is not a correct reading of this section of the statute. A legacy, of course, is a gift of personal estate by will. The word 'devise' is usually employed to denote a gift by will of real estate, or an interest therein. But the word 'bequest' may mean any gift by will, whether it consists of personal or real property. In § 10 of the Dower Act of 1845, the words, 'devise' and 'bequest,' seem to have been used as convertible terms, and as meaning a gift by will, of land, or an interest therein."


In the case of RE BREEN (reported herewith) ante, 238, it appeared that a testator, having no children, left one half of all his property to his widow, and the other half to his collateral relatives. The widow elected not to accept the provisions of the will. She contended that the statute permitting a "devise" of one half of a married person's property to other than the spouse, if they had no children, affected only the realty. court held, however, that the word "devise" was used in its popular sense, and related to the disposal of both personalty and realty, saying: "In 1883, a new section (Laws 1883, chap. 163, § 1) was added to the act in relation to wills, reading as follows: 'Any married person having no children may devise one half of his or her property to other persons than the husband or wife.' Gen. Stat. 1909 § 9812. A preliminary contention is made by the appellant that this section affects only real property, inasmuch as it uses the word 'devise' and not 'bequeath.' 'Devise,' however, is used with respect to the disposal of personal property in statutes as well as in wills. 3 Words & Phrases, p. 2047; 14 Cyc. 284. In the case cited it was said that the word 'bequeath' in the section there construed (Gen. Stat. 1909, § 9811) probably means 'devise and bequeath.' Such has undoubtedly been the interpretation placed upon it, and the term used in the subsequent statute should be given a similar elastic meaning."

In Barry v. Barry (1875) 15 Kan. 587, the court, in construing a statute which provided that no married person should bequeath away from the other more than one half of his property without that other's consent, said by way of dictum: "The word 'bequeath' in that section probably means 'devise and bequeath.' But it is not necessary now to so decide."

In Rogers v. Farrar (1828) 6 T. B. Mon. (Ky.) 421, a creditor of a testator instituted an action against the executors and devisees, under a statute which provided for such an action against the executors or administrators, and devisees or heirs. In construing this statute the court held that the word "devisees" was used in its technical sense, meaning a disposition by will of realty. It was said: "It is against devisees and not against legatees that remedy is given by the act. Each of those terms has a technical signification; and should be taken in its technical sense. 'Devisee,' in its technical sense, means one to whom lands or other real estate are devised; 'legatee,' a person to whom chattels are bequeathed." In a later case from the same jurisdiction, Roberts v. Chenowith (1908) 33 Ky. L. Rep. 1081, 112 S. W. 625, which, however, decided no point within the scope of this note, the court referred to a statute changing the rule, saying: "Recognizing the generally careless, inadvertent, and interchangeable use of these words, the general assembly of the state provided in § 467 of the Kentucky Statutes of 1903, that the words, "legatee" and "devisee," shall each be held to convey the same idea; and the words, "bequeath" and "devise," to mean the same thing; and the words, "bequest" and "legacy," shall each be held to mean the same thing, and to embrace and include either real or personal property, or both.""

In Freme v. Clement (1881) L. R. 18 Ch. Div. (Eng.) 499, 50 L. J. Ch. N. S. 801, 44 L. T. N. S. 398, 30 Week. Rep. 1, it appeared that a testator exercised a power of appointment by will. The court, referring to the Statute of Wills,

said by way of dictum: "The words, devise' and 'bequest,' are not strictly limited to either real or personal estate. They may be both used for both kinds of estate."

In Barrington v. Liddell (1852) 2 De G. M. & G. 480, 42 Eng. Reprint, 958, 17 Jur. 241, 22 L. J. Ch. 1, 17 Eng. L. & Eq. Rep. 188, the court construed a statute relating to trusts and providing as follows: "Nothing in this act contained shall extend to any provision for payment of debts of any grantor, settlor or devisor, or other person

or persons, or to any provision for raising portions for any child or children of any grantor, settlor or devisor, or any child or children of any person taking any interest under such conveyance, settlement or devise; or to any direction touching the produce of timber or wood upon any lands or tenements, but that all such provisions and directions shall and may be made and given, as if this act had not passed." The court held that the word "devise" included any disposition of R. C. L. property by will.

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Partnership failure to bind firm — individual liability.

A member of a partnership, who, personally and without authority to bind the firm, signs the firm name to a contract of guaranty, is responsible on the contract in his individual capacity, and may be sued upon the contract, and it is not necessary to bring the suit for breach of implied warranty, nor an action in tort for fraud and deceit.

[See note on this question beginning on page 258.]

Headnote by MCNEILL, J.

ERROR to the McClain County Court (Mauldin, J.) to review a judg ment in favor of plaintiff in an action brought to enforce payment of a contract of guaranty. Affirmed.

The facts are stated in the opinion of the court.
Mr. Ben Franklin for plaintiff in


Messrs. W. C. Madison and E. E. Glasco, for defendants in error:

The court did not err in rendering judgment against defendant M. Bon


Cochran v. Baker, 34 Or. 555, 52 Pac. 520, 56 Pac. 641; Roberts v. Button, 14 Vt. 195; Farmers' Co-op. Trust Co. v. Floyd, 47 Ohio St. 525, 12 L.R.A. 346, 21 Am. St. Rep. 846, 26 N. E. 110; Layng v. Stewart, 1 Watts & S. 222; Gunderson v. Hasterlik, 100 Ill. App. 429; Laverty v. Burr, 1 Wend. 529; Bloom v. Helm, 53 Miss. 31; Silvers v. Foster, 9 Kan. 56; Byars v. Doores. 20 Mo. 284; Woodes v. Dennett, 9 N.

H. 55; Terwilliger v. Murphy, 104 Ind. 32, 3 N. E. 404; Beach, Contracts, § 1066; Frankland v. Johnson, 147 Ill. 520, 37 Am. St. Rep. 234, 35 N. E. 480; Weare v. Gove, 44 N. H. 196; Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Gillaspie v. Wesson, 7 Port. (Ala.) 454, 31 Am. Dec. 715; Collins v. Allen, 12 Wend. 356, 27 Am. Dec. 130; Cox v. Gille Hardware & Iron Co. 8 Okla. 483, 58 Pac. 645; Hampton v. Speckenagle, 9 Serg. & R. 212, 11 Am. Dec. 705.

McNeill, J., delivered the opinion of the court:

This was an action commenced in the county court of McClain county

by Strauss Brothers, plaintiffs, Brothers, plaintiffs, against Bonneau Brothers and M. Bonneau, the petition alleging that Bonneau Brothers as a partnership, consisted of M. Bonneau and Louis Bonneau; that heretofore they executed a contract, guaranteeing the payment for certain goods to be sold and delivered to B. C. Henderson. The contract was signed, "Bonneau Brothers by M. Bonneau." To the petition a demurrer was filed by Bonneau Brothers and M. Bonneau, which was overruled. Thereafter M. Bonneau filed a demurrer, and Bonneau Brothers filed an answer, and, as one of the defenses, alleged that Bonneau Brothers was a partnership, engaged exclusively in the furniture business in the town of Purcell, and, if a member of the partnership signed the name of the firm to the obligation set forth in plaintiffs' petition, that act was unauthorized and not in the scope of the firm's business.

This answer was sworn to by M. Bonneau. The court permitted an amendment to the petition, to insert the name of M. Bonneau in the body of the petition after the words, "Bonneau Brothers," and overruled the demurrer of M. Bonneau to the said petition, to which M. Bonneau excepted and refused to plead further, and judgment was rendered against the defendant M. Bonneau by default, and evidence introduced and judgment rendered for the sum of $116.80. The cause was dismissed as to Bonneau Brothers. The case was brought to this court, and plaintiff in error, M. Bonneau alleges four assignments of error, the first three not being argued by plaintiff in error; and, therefore, we will not consider them.

The only assignment of error presented in the brief of plaintiff in error is: Did the court commit error in overruling the demurrer of M. Bonneau to plaintiffs' petition? The theory presented by plaintiff in error is: Where one partner executes a contract in the firm name,

by himself, and admits that he had no authority to bind the partnership, does he become individually liable upon the contract, or does his liability rest upon a breach of implied warranty, or an action in tort? Plaintiff in error contends that the action must be one for a breach of implied warranty, or for an action in tort for fraud and deceit. In this we cannot agree. Plaintiff in error cites numerous authorities upon the question, but all of them are cases where the contract was executed in the name of his principal by an agent. Upon that question the cases are not in harmony, but it has been held by this court that the action would be upon a breach of implied warranty, or an action for fraud and deceit. But plaintiff in error has not cited a case where the contract was signed by one member of a partnership, who signed the partnership name. There appears to be a different rule in so far as partnership contracts are concerned. This rule is laid down in 20 R. C. L. p. 882, as follows, to wit: "The law of partnership is a branch of the law of agency. The functions, rights, and duties of partners in a great measure comprehend those of agents, and the general rules of law applicable to agents likewise apply to partners. Accordingly, the liability of one partner for the acts of his copartners is founded on the principles of agency. Every partner is a commercial partnership, apart from any special powers conferred on him by the articles of copartnership, is not only a principal, but also a general and authorized agent of the firm, and the agent of all the partners for all purposes within the scope and objects of the partnership. Thus it is that a partner embraces the character both of principal and agent. With respect to the concerns of the partnership, he virtually acts as principal for himself and as agent for his partners."

In 20 R. C. L. 891, the following rule is laid down: "The liability of

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