Devastavit

A devastavit is
a mismanagement and waste by an ex-
ecutor, administrator or other trustee,
of the estate and effects trusted to him,
as such, by which a loss occurs.

2. — It takes place by direct abuse,
by inal-administration, and by neglect.

3. — § 1. By direct abuse. This
takes place when the executor, admin-
istrator or trustee, sells, embezzles, or
converts to his own use, the goods en-
trusted to him. Com. Dig. Adminis-
tration, I 1 ; releases a claim due to the
estate, 8 Bats. Al>. 7 oo ; Hob* 260;
Cro. Eliz. 43 $ 7 John. R. 404 ; 9
Mass. 352 ; or surrenders a lease be-
low its value. 2 John. Cus. 37G; 3
I*. Wms. 330. These instances suffi-
ciently show that any wilful waste of
the property will be considered as a
direct devastavit.

4. — § 2. By maladministration.
Devastavit by maladministration most
frequently occurs by the payment of
claims which were not due nor owing ;
or by paying others out of the order in
which they ought to lx? paid ; or by the
payment of legacies before all the debts
have been satisfied. 4 Serg. 6s Rawle,
394.

6. — § 3. By neglect. Negligence
on the part of an executor, administra-
tor or trustee, may equally tend to the
waste of the estate, as the direct des-
truction or mal-administration of the
assets, and render him guilty of a de-
vastavit. The neglect to sell the goods
at a fair price within a reasonable
time, or, if they are perishable goods,
before they are wasted, will be a devas-
tavit. And a neglect to collect a doubt-

ful debt, which by proper exertion,
might have been collected, will bo so
considered. Bac. Ab. Executors, L.

0. — The luw requires from trustees,
good faith and due diligence, the want
of which is punished by making them
responsible for the losses which may
be sustained by the property entrusted
to them; when, therefore, a party has
been guilty of a devastavit , lie is requir-
ed to make up the loss out of his own
estate. Vide Com. Dig. Administra-
tion, I; 11 Vin. Ab. 390; 1 Supp. to
Ves. Jr. 209 ; 1 Vcrn. 328 ; 7 East,
U. 257; 1 Binn. 194; 1 Serg. &
Rawle, 241; 1 John. R. 390; 1
Caincs’s Cas. 90 ; Bac. Ab. Executor,
L.

DEVIATION, insurance , contracts ,
is a voluntary departure, without ne-
cessity, or any reasonable cause, from
the regular and usual course of the
voyage insured.

2. — From the moment this happens,
the voyugc is changed, the contract de-
termined, and the insurer discharged
from all subsequent responsibility. By
the contract the insurer only runs the
risk of the contract agreed upon, and
no other ; and it is therefore a condition
implied in the policy, that the ship
shall proceed to her port of destination
by the shortest and safest course, and
on no account to deviute from that
course but in cases of necessity.

3. — The effect of a deviation is not
to vitiate or avoid the policy, but only
to determine the liability of the under-
writers from the time of the deviation.
If, therefore, the ship or goods, after the
voyage has commenced, receive dam-
age, then the ship deviates, and after-
wards a loss happen, there, though the
insurer is discharged from the time of
the deviation, and is not answerable for
the subsequent loss, yet he is bound to
make good the damage sustained pre-
vious to the deviation. 2 Lord Kaym.
842 ; 2 Salk. 444.

4. — But though he is thus discharg-

ed from subsequent rcsjamsibility, he is
entitled to retain the whole premium.
Dougl. 271; 1 Marsh. Ins. 183;

Park, Ins. 294. See 2 Phil. Ev. GO,

n. (b), where the American cases arc
cited.

6. — What amounts to n deviation is
not easily defined, but a departure
front the usual course of the voyage, or
remaining at place* where the ship is
authorised to touch, longer than neces-
sary, or doing there what the insured
is not authorised to do, as if the ship
have merely liberty to touch at a port,
and the insured stay there to trade or
break bulk, it is a deviation. 4 Dali.
274; 1 Peters’s C. C. It. 104; Marsh.
Ins. 13. 1, c. 0, s. 2. I3y the course of
the voyage, is not meant the shortest
course the ship can take from her port
of departure to her |>ort of destination,
but the regular and customary track, if
such there bo, which long usage has
proved to be the safest and most con-
venient. 1 Marsh. Ins. 185. Sec 3
Johns. Cas. 352 ; 7 T. It. 102.

G. — A deviation that will discharge
the insurer, must be a voluntary depar-
ture from the usual course of the voy-
age insured, and not warranted by any
necessity. If a deviation can be justi-
fied by necessity, it will not affect the
contract ; and necessity will justify a
deviation, though it proceed from n
cause not insured against. The cases
of necessity which are most frequently
adduced to justify a departure from the
direct or usual course of the voyage,
are, 1st, Stress of weather; 2d, T lie
want of necessary repairs ; 3d, Joining
convoy ; 4th, Succouring ships in dis-
tress ; 5th, Avoiding capture or deten-
tion ; Gth, Sickness of the master or
mariner ; 7th, Mutiny of the crew.

See Park, Ins. ch. 17 ; 2 John. Cas.
290 ; 11 Johns. It. 241 ; Pet. C. C. R.
98; 2 Johns. Rep. 89; 14 Johns. R.
315; 2 Johns. R. 138; 9 Johns. It.
192 ; 8 Johns. Rep. 491 ; 13 Mass. 68 ;
13 Mass. 539; lb. 118 ; 14 Mass. 12 ;
1 Johns. Cas. 313 ; 11 Johns. R. 241 ;
3 Johns. It. 352 ; 10 Johns. It. 83; 1
Johns. R. 301 ; 9 Mass. 436, 447 ; 3
Binn. 457 ; 7 Mass. 349 ; 5 Mass. 1 ; 8
Mass. 308 ; 6 Mass. 102, 121 ; 0 Mass.
122 ; 7 Cranch, 26 ; lb. 487 ; 3 Wheat.
159; 7 Mass. 365; 10 Mass. 21 ; lb.
347 ; 7 Johns. Rep. 364; 3 Johns. It.

352 ; 4 Dali. R. 274 ; 5 Binn. 403 ; 2
Serg. & Raw. 309 ; 2 Cranch, 240.

Dkviation, contracts. When a
plan hus been adopted for a building,
and in the progress of a work a change
has been made from the originnl plan,
the change is called a deviation.

2. — When the contract is to build a
house according to the original plan,
and a deviation takes place, the con-
tract shall be traced ns far ns possible,
and the additions, if any have been
made, shall be paid according to the
usual rate of charging. 3 Barn. &
Aid. 47; and see 1 Vcs. jr. 60 ; 10
Ves. jr. 306; 14 Ves. 413; 13 Vcs.
73; Id. 81; 6 Johns. Ch. R. 38; 3
Cranch, 270; 5 Cranch, 262; 3 Ves.
693; 7 Ves. 274 ; Chit. Contr. 168;
9 Pick . 298.

3. — The Civil Code of Louisiana,
art. 2734, provides, that when an
architect or other workman has under-
taken the building of a house by the
job, according to a plot agreed on be-
tween him and the owner of the ground,
he cannot claim an increase of the
price agreed on, on the plea of the
originnl plot having been changed and
extended, unless he can prove that
such changes have been made in com-
pliance with the wishes of the proprietor.

DEVISAVIT VEL NON, practice,
the name of an issue sent out of a court
of chancery, or one which exercises
chancery jurisdiction, to a court of
law, to try the validity of a paper
asserted and denied to be a will, to
ascertain whether or not the testator
did devise, or whether or not that
paper was his will. 7 Bro. P. C. 437 ;

2 Atk. 424.