Terminology of Testamentary Gifts (“devise,” “bequest,” “legacy”)

Translators of English-language wills are often puzzled by the formulaic expression “I give, devise and bequeath,” used when specifying how a testator’s estate should be divided upon his death. Is the expression redundant, or would one of the three verbs actually suffice?

Strictly speaking, a “devise” (verb: “to devise”) is a testamentary gift of real property (bienes inmuebles), the beneficiary of which is known as a “devisee.” In contrast, a “bequest” (verb: “to bequeath”) is a testamentary gift of personal property (bienes muebles), often excluding money. Thus, “devise” may be translated as legado de bienes inmuebles, while “bequest” may be rendered as legado de bienes muebles. In modern American usage “devise” and “bequest” are often used interchangeably, although the distinction largely persists in English usage. “Legacy” is often thought to more properly refer to a testamentary gift of money, although the term is likewise widely used synonymously with “bequest” to denote any gift of personal property. The beneficiary of a legacy is a “legatee.” Devises, bequests and legacies may all be equally described as “testamentary gifts.”

*This may be due, in part, to the fact that the Uniform Probate Code uses “devise” to denote both real and personal property. Its Section 1-201 General Definitions (10) states that “‘Devise,” when used as a noun means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.”

 

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