Page:Black's Law Dictionary (Second Edition).djvu/372

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DEVIATION.

DEVIATION. In Insurance. Varying from the risks insured against, as described in the policy, without necessity or just cause, after the risk has begun. 1 Phil. Ins. § 977, ct scq.; 1 Am. li.is. 415, at sea. Hostetter v. Park, 137 U. S. 30, 11 Sup. Gt. 1. 34 L. Ed. 568: Wilkins v. Insurance Co.. 30 Ohio St. 317, 27 Am. Rep. 455: Bell v. Insurance Co., 5 Rob. (La.) 4-15, 39 Am. Dec. 542: Audenrcld v. insurance 00.. 60 N. Y. 484, 19 Am. Rep. 20-1: Crosby v. Fitch. 12 Conn. 420. 31 Am. Dec. 745: The Iroquois, 118 Fed. 1003. 55 0. 0. A. 497.

Any unnecessary or unexcused departure from the usual or general mode of carrying on the voyage insured. 15 Amer. Law Rev. 108.

Deviation is a departure from the course of the voyage insured, or an unreasonable delay in pursuing the voyage, or the com- mencement of an entirely different voyage. Civil Code Cal. 5 269-}.

A deviation is a voluntary departure from or delay in the usual and regular course of a voyage insured. uilhout necessity or reasonable cause. This disciinrges the insurer. from the time of the deviation. Collin v. Nevvburyport Marine Ins. Co.. 9 Mass. 436.

In contracts. A change made in the progress of a work from the original terms or design or method agreed upon.

DEVICE. An invention or contrivance; any result of design; as in the phrase ",;aiiililing device." which means a machine or contrivance of any kind for the playing of an unlawful game of chance or hazard. state v. Blackstone, 115 M0. 424, 22 8. W. 370. Also, ii plan or project; a scheme to trick or deceive; s stratagem or artifice; as in the laws relating to fraud and cheating. State v. Smith. 82 l\llnn. 342. 85 N. W. 12. Also an emblem, pictorial representation, or distin- guishing mark or sign of any kind: as in the laws prohibiting the marking of ballots used in miblic elections with “any device." Baxter v. Ellis. 111 N. C. 124. 15 S. E. 938, 17 L. R. A. 38-: Owens v. State. 64 Tax. 509; Steele v. Calhoun, 81 Miss. 556.

In a statute against gaming devices. this term is to be understood as meaning something furio- ed by design, a contrivance, an invention. It is to be disrin-ruished from "substitute," which means something put in the place of nnniiier thing, or userl inst: ad of something else. Henderson v. State, 59 Ala. 91.

In patent law. A plan or contrivance, or an application, adjustment, shaping, or combination of mnrerials or members, for the purpose of accomplishing a particular result or serving a particular use, chiefly by inecbanical means and usually simple in char- acter or not highly complex, but involving the exercise of the inventive faculty.

DEVI]. ON THE NECK. An instrument of torture, formerly used to extort confesslons, etc. It was made of several irons, which were fastened to the neck and legs,

364

DEV lSE

and wrenched together so as to break the back. Cowell.

DEVISABLE. Capable of being devised 1 Pow. Dev. 165; 2 Bl. Comm. 373.

DEVISAVIT VEL NON. in praclln. The name of an issue sent out of a court of chant-cry, or one which exercises chiiiuzeu jurisdiction, to a court of law, to try the va- ildity of a paper asserted and denied to be H will, to ascertain whether or not the testaht did devise, or whether or not that paper on his will. 7 Brown, Pari. C213. -I37; ‘.7. Atlv. Q4: Asay v. Hoover, 5 Pa. 21, 45 Am. Dec. 713.

DEVISE. A testamentary disposition of land or really: a gift of real property by the last will and testament of the donor. S(.ll0‘i.' v. Scholle. 113 N. Y. 261, 21 N. E. 84: Few bee v. Procter, 19 N. C. 440; Pratt v. illc Ghee, 17 S. C. 428; In re Feti-ow's Estate. 58 Pa. 427: Jenkins v. 'i‘oblu, 31 Ark. BOG; Ii. re Dailey's Estate, 43 Misc. Rep. 532, 89 N. Y. Supp. 541.

Synonyms. The term “devise" is properly restritteri to real property, and is not applicable to testamentary dispositions of personal pi'0] ‘ ty, which are properly called "bequests" or “Inn acies." But this distinction will not be slim.- ed in law to defeat the purpose of a tostator: and all of these terms may be mu.--triied inter changeahiy or applied inditferenlly to either nil or personal property, if the context shows that such was the intention nf the tistatnr. Lmu‘. v. Harvey. 21 N. H. 528; Boizzner v. Brown. 133 Ind 391, 33 N. E. 92: Oothout v. Rogers, 59 Hun 97. 13 N. Y. Supp. 120; 1\Icf‘orkle v, Slierrill. 41 N. C. 176.

Classification. Devises are oontinpcnt or vested; that is, after the death of the Ll.~l'llI)l. Continzent, when the vesting of any estate in the devises is made to depend upon some future event. in which case, if thc event never (I(‘( or until it does occur. no estnte vests under [:0 devise. But, when the future event is referred to merely to determine the time at which the dmisee shall come into the use of the estate. this does not hinder the vesting of the estate at the death of the testatnr. 1 Jam. Wills. - 2G. Devises are also classed a _m»nr~ral or ii..- cific. A general devise is one which passes lands of the tostator without a purllculai 1-m- rnerution or description of them; as, a devise of "all my lands" or "all my other lands." In a more rnstiicted sense, a general devise is one uhich grants a parcel of land nithout the uddition of any words to show how great an as‘ tats is meant to be given, or without vmrds ilw ilicnting either a grant in perpetuity or a gram for a limited term; in this case it is constiw-I as granting: a life estate. Hitch v. Patten. 6 ?Houst (Del.) 334, 18 At]. . _ L. R. A. 724 Specific dt-rises are devises f lands partly-» iiirly specified in the terms of the devise, as 0}- posed to general and residuary rlr-visi-s of land. in which the local or other particular descriptions are not expressed. For example, "I devise mv Hrndon Ilnll estate" is xi specific devise: but "I devise all mv lands,” or, “all other my lands," is a mmernl devise or a rcsivliiui-g d»- vise. But all devises are (in «II:-ct) spt-cifi., even res-iduary devises being so. L. R. 3 Ch. 4'10: id. 133. A conditional deiise is or: which depends upon the occurrnnce of some un- rortnin event, by which it is either to take offe(t or be defeated. (‘iv. Code (‘ILL § 1345. An

ercoutory devise of lands is such a disposition