Definition
Devisavit vel non (Latin: "did he devise, or not?") is the name of an issue directed by a court of equity — typically a chancery court — to a court of law for the purpose of determining whether a particular document is a valid will. The issue frames a binary factual question: did the testator actually make a will, and is the paper in dispute that will? The jury's verdict on the issue resolves contested facts — such as fraud, undue influence, or testamentary incapacity — that the equity court lacks a jury mechanism to determine directly. Once the factual issue is resolved at law, the equity or probate court applies the verdict to the proceeding before it.
The procedure is not an independent lawsuit. It is a device by which a court exercising equitable or probate jurisdiction borrows the jury-trial machinery of a court of law to settle a disputed question of fact central to the validity of a testamentary instrument.
Common Language
This section is omitted. Devisavit vel non is pure legal jargon with no meaningful counterpart in ordinary English use.
Common Confusion
Devisavit vel non is sometimes loosely equated with a will contest generally, but the two are distinct. A will contest is any proceeding challenging the validity of a will, and it may be conducted entirely within a probate or equity court. Devisavit vel non is a specific procedural mechanism — a directed issue sent to a law court for jury determination — that may arise within a will contest but is not synonymous with one. Not every will contest generates an issue devisavit vel non, and historically the issue was granted at the court's discretion, not as a matter of right.
Why It Matters in Research
The procedural context of this term shifts substantially across history, and researchers working in older equity and probate records must understand what it signals about the court structure at the time.
Before the merger of law and equity in American jurisdictions (and before the fusion effected in England by the Judicature Acts of 1873–1875), chancery courts could not empanel juries. When a will's validity turned on a contested factual question — capacity, fraud, undue influence, forgery — the chancery court had to direct the issue to a common law court. The verdict returned was technically advisory in equity, though in practice courts rarely ignored it.
After procedural merger, the mechanism largely disappeared as a formal device because merged courts could empanel juries directly. Researchers encountering the phrase in post-merger records should treat it as either an anachronism, a jurisdiction that retained separate courts longer than most, or a reference to older proceedings being discussed in a later opinion.
Jurisdictional variation is significant. Pennsylvania, for example, retained robust use of the directed issue into the nineteenth century, and the sources cite Pennsylvania cases directly. Southern states with active chancery traditions also generated substantial records involving this procedure. Researchers using the Law Mind corpus should pay attention to which court is generating the issue and which court is receiving it — that dual-court paper trail can produce records split across two different docket series.
A related research trap: because the verdict was rendered by a law court but the ultimate decree issued from equity, the dispositive ruling on will validity may appear in chancery records with only a reference to the law court's verdict, and vice versa. Researchers who only search one court's records risk missing half the proceeding.
Historical Dictionary Support
The four source dictionaries are in substantial agreement on the core definition: an issue directed from equity to law to try the validity of a will. Bouvier expands slightly on Black's by specifying that the directing court may exercise "chancery or probate jurisdiction," which is a useful clarification for jurisdictions where probate courts held equitable powers. Burrill offers the most analytically precise entry, rendering the Latin directly ("Did he devise, or not? Was there, in fact, a will or not?") and specifying the factual objections at issue — "fraud, or incapacity on the part of the testator." Burrill also cites Powell on Devises and Story's Equity Jurisprudence, the leading treatise authorities of the period. Black's 2nd edition adds a Pennsylvania citation (Asay v. Hoover, 5 Pa. 21) that grounds the abstract procedure in actual practice.
None of the historical dictionaries address the post-merger obsolescence of the device or explain what happened to the function it served once law and equity courts were consolidated. That silence is itself informative: these dictionaries were compiled at a moment when the procedure was either still in use or recently retired, and their framings reflect active practice rather than historical retrospective.
Jurisdictional Note
The directed issue to a law jury was a feature of jurisdictions with separate law and equity courts. England, most American states before code pleading reform, and jurisdictions retaining distinct chancery courts generated this procedure. Following procedural merger — accomplished in federal courts by the Federal Rules of Civil Procedure (1938) and in most states during the nineteenth and early twentieth centuries — the formal mechanism became obsolete. Researchers should verify the applicable court structure for the jurisdiction and period under study before assuming this procedure was available.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Wills and Probate — Testamentary Validity; Courts of Equity and Chancery Practice.