Definition
Devisare is a Latin legal term meaning "to devise" — that is, to dispose of real property by will. The term appears in historical English law as the root form underlying several related Latin phrases and nominal forms used in probate and ecclesiastical court practice.
Derived forms include:
1. DEVISAVIT — the third-person singular past tense, meaning "he devised" or "he made a devise." Used in pleadings and court records to assert that a testator executed a valid testamentary disposition.
2. DEVISAVIT VEL NON — literally "he devised or not." A formal issue of fact directed by a court of equity or probate to a common law jury to determine whether a writing purporting to be a will was in fact validly executed. The issue typically arose when fraud, undue influence, or lack of testamentary capacity was alleged and supported by prima facie evidence.
3. DEVISAMENTUM / DEVISATIO — nominal forms meaning "a devise." Found in entries and pleading books from the English common law tradition.
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Common Confusion
Devisare and its derivatives are sometimes loosely equated with any testamentary act, but historically the term was tied specifically to dispositions of real property. The devise of personal property operated under different rules and vocabulary (see BEQUEST, LEGACY). Researchers should not assume that devisare encompasses all testamentary giving without confirming the property type at issue in a given historical source.
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Why It Matters in Research
This term is primarily a research marker rather than a living legal term. Researchers will encounter devisare and its derivatives in three main contexts:
First, in Latin pleadings, court entries, and form books from English common law and ecclesiastical practice. Burrill cites Rastell's Entries (Rast. Entr. 486) as a source for the nominal forms, signaling that these terms appear in the classic English pleading precedent books. Researchers working with pre-modern probate or chancery records should recognize devisare and its conjugates on sight.
Second, in the context of the devisavit vel non issue. This was a significant procedural mechanism: equity and probate courts lacked the power to empanel juries, so when will contests turned on disputed facts — particularly fraud or undue influence — a formal issue was framed and sent to a common law court for jury determination. Understanding devisavit vel non is essential for tracing the jurisdictional boundary between equity and common law in probate matters. The issue appears in English practice and was carried into early American courts before modern probate procedure consolidated these functions.
Third, as Latin shorthand in treatises and digests. Nineteenth-century legal encyclopedias and treatises frequently cite devisavit vel non when discussing will contests. Researchers using older American or English secondary sources should recognize the phrase as referring to the jury trial mechanism, not simply to the act of devising.
A navigational trap: the abbreviated phrase "vel non" appears in other legal contexts entirely (courts sometimes use it as a general Latin phrase meaning "or not" in class certification and other procedural settings). Do not assume a modern reference to "vel non" carries the probate meaning. The full phrase devisavit vel non is the relevant search string for will contest procedure in historical sources.
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Historical Dictionary Support
Anderson and Burrill agree on the core meaning — devisare means to divide, separate, or dispose of property by will — and both identify devisavit vel non as the most practically significant derivative. Anderson's entry is more detailed on the procedural operation of the devisavit vel non issue, describing the conditions under which it was directed (prima facie proof of fraud or undue influence) and the institutional setting (a court of probate or equity directing a jury trial at common law). Burrill's entry is more economical but adds the nominal forms devisamentum and devisatio with the Rastell citation, which Anderson omits.
Neither entry contextualizes the term against the broader jurisdictional history of will contests or explains the eventual absorption of the devisavit vel non procedure into unified probate courts. Researchers relying solely on these dictionary entries will understand the mechanics but may miss the institutional evolution that rendered the phrase archaic in most modern American jurisdictions.
The reference to Rastell's Entries in Burrill is a useful pointer: Rastell's work is a primary source for the forms of action and pleading in which these Latin terms appeared, and consulting it directly may be necessary for work on pre-1700 English probate practice.
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Jurisdictional Note
The devisavit vel non issue was a feature of English ecclesiastical and chancery practice that migrated into early American courts. Its continued relevance varies sharply by state depending on how and when probate jurisdiction was consolidated. In jurisdictions that preserved constitutional jury trial rights in will contests, successor procedures to the devisavit vel non mechanism may persist under modern statutory labels. Researchers should not assume uniform treatment across states.
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