Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-10-11
q Lewis Sutherland Stat. Const.,
757 ed ed.)

Z Lewis Sutherland Stat. Const.,
757 I'D ed.)
1t will not be gainsaid, we appre-
bend. that the word 'beQueath' is one
generally used to express a gift OF
personality made in a last will or
testament. The word "devise" IS a
term generally used to express a gift
Of reality made by last will or tesla
mert. That these terms have been by
the courts construed in some in
stances to have interchangeable sig
nitiCanCe takes sanction rather from
the use made Of the terms by the
legislative bodies of the respective
states where such construction has
been applied.
In re Campbelrs Est. (Utah) IS
Pac. ISL.
Evans VS.. Price, (Ill.) 8 N. E. 854.
1t is, we think. a general principle
that technical words and phrases hav-
ing peculiar and appropriate 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 4 court
seeking to carry out the will OF the
ANSiSi"tlNN p'NN, dpi'l\o ~ tiS aims
the meaning that will give the most
In the case of Desloge VS.. Tucker,
"a 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
o. petition f. sale OF real estate Of a
deccdent notice be published; pro-
vided. that where the heirs or de
visees" are residents Of the county,
notice shall be served on each; held.
THAT the word "dcvisecs' does not
include legatees.
The statute Of the state Of Cali
fornia as enacted in 1872 and for
many years prevailing in that state
was quite analogous to our statute
here under consideration. {SectiOD
1910. Civil Code Of California. 1909.
Tn the matter Of the Estate of Ross.
40 Cal. 288, the Supreme Court OF
that state held that the statute did
rot apply to legaCics but simply to
deViSeS. There the court took CCca-
sion to rCemark:
"In the whole chapter IN wills
(Civ. Code. Secs. l27O-137O the leg
i~slaturc has, with extreme are and
technical accuracy, used the terms
devise and legacy in their we'll
recognized C~ommOn-laW sense and
distinction; the ~ as testamentary
disposition OF land. the other a like
disposition Of personality"
The court referred to the intend-
mcnt Of the legislature as made mani
fest by the several sections OF the
Act where the terms "dcvise" and
"deviSee" and '1cgacy" and ~"lcoatee"
were used with legal cNactncss," 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:
"\Nhere clear. direct and explicit
terms are used by the legislature,
which have had a definite meaning
since the beginning Of common-law
Technology. there can be no room
for discussion as to their meaning.
Time has marked them too distinctly
not to be clearly recognized and un-
d~crstOOd.'
The cOurt in that case commented
on the fact that the legislature should
have limited the application of sec
ton 1910 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 Cali
fornia in 1880 set forth this section
the same as it stood in the Code in
1908.
It may not be ont Of place to re-
mark here parcnthctiCally that mas
much as MANY Of the members of our
Territorial legislature Of 1862 were
former residents OF the state of Cali
tornia, 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 talk
en- III substance, at least, from the
statute OF that state.
The decision of the Supreme Court
Of California in the matter of the es-
tate of 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 sections 1910 Of
the Civil Code of California now
reads:
"Nhen any estate is devised or be
uueathed to any child. CT other rela-
ton Of the testatOr, and the devlsee
or legatce dies before the testatOr
ltdNlllS llllcdl utSIt1lQdlltS, SuNll TX
SCendants take the estate SO given by
the will, in the sane manner as the
devisee or legatec would have zone
had he survived the testatOr.'
In the matter of the Estate of
Claus Spreckles, (Coffey's Probate
Decisions, vol. 5, p. 34S), Judge Cot
fey, referring to the original as well
as to the amended statute Of the state
of California. commenting on the de-
cisiOn of the Supreme Court of Cali
fOrnia in the Ross case. supra, EN-.
phasizcd the assertion that the stat
ute OF California as it stood at the
time of the decision in the Ross case
admitted of no ether construction, in
asmuch as the use Of the terms de
wise" and ''dcvisee,' LEGACY" and
"legatee," all through the chapter on
Wills with legal e%Xactness exhibited
the intention Of the legislature to en-
ploy them precisely as defined at