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In Re Estate of Lewis

July 1916

IN THE MATTER OF THE ESTATE OF JENNIE LEWIS, DECEASED.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Hoyt, Gibbons & French, for Appellants.

James T. Boyd, for Respondents.

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

[39 Nev. 445, Page 450]

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 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

[39 Nev. 445, Page 451]

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.'”

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 ...


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