10 Haw. 543 | Haw. | 1896
OPINION OF THE COURT BY
Tbe testatrix, Malie Kabai, died on tbe 15tb August, 1894, having made a will tbe previous year by wbicb sbe devised
“If Elizabeth should die without children or descendants,, then all my property shall descend to Vito N. Baker and Eliza K. Baker*, the younger sisters of the said Elizabeth.” Some specific bequests'and the nomination of an executor follow.
Elizabeth married O. W. Booth on the 31st December, 1894, and a child was born to them on the 14th October, 1895, which lived but one day and deceased. On a bill for a construction of the will, Oircuit Judge Perry of the Eirst Circuit Court, reserved the following questions of law:
“1. What estate, legal or equitable, has Elizabeth K. Booth,. nee Baker, in the property, real and personal, devised and bequeathed under the will of Malie Kahai, the said Elizabeth K. Booth having attained majority, married and had issue of the said marriage now deceased?
2. What estate, legal or equitable, vested or contingent,, have the defendants, or either of them, in the said property under the said circumstances?
3. Was an estate in perpetuity created in said real estate by the will of Malie Kahai, and if so was its effect to vest the estate absolutely in Elizabeth K. Booth?
4. If Elizabeth K. Booth has an estate tail in said real property can she bar her entail by a proper deed made for that purpose?
5. Under clause second of Malie Kahai’s will can any title' in the real estate vest in any child or descendants of Elizabeth. K. Booth until the decease of the said Elizabeth K. Booth?”
Bearing in mind that the intention of the testatrix must govern (Thurston v. Allen, 8 Haw. 401), we find -that an estate for life in the real and personal estate was created in Elizabeth. The language used is inartificial, but the expression that Elizabeth is to have “all the benefits of the land during her lifetime and is not to dispose of any of the real or' personal estate” sufficiently conveys the testatrix’s intention to create only a life estate in Elizabeth. Where would the-property go upon the termination of the life estate? The will says if Elizabeth should have a child the property, real and personal, shall go to such child. No child of Elizabeth was in esse at the time of the death of the testatrix. The unborn child or children of Elizabeth have then a contingent remainder in fee in the estate. 2 Wash. R. P. p. 541 (4th Ed.) But the contingent remainder became a vested one in the child as soon as it was born. The vested remainder here is one of inheritance and on the death of the child it passed to its heirs who are by our statute of descent, its father and mother (the plaintiffs) as tenants in common.
But the will does not limit the remainder to the first born child. In the second article of the will, the limitation over to the defendants is only to take effect at the death of the life tenant without “children or descendants.” This contemplates that the remainder is to be in such children as might thereafter be born to Elizabeth.
The birth of Elizabeth’s child defeated the limitation over to the sisters of Elizabeth, defendants. But there may be other children born of Elizabeth. There is nothing in the will to show that the testatrix did not mean to include all the children of Elizabeth. Doe v. Perryn, 3 T. R. 484, is in point. In this case the will in effect left the estate to Dorothy for life and then to her children and heirs forever, with limitations over, Dorothy had no child at the death of the devisor and her children were bom thereafter. Ashhurst, J., said, p. 493, “Wherever
The estate of Elizabeth K. Booth in the property is one for life, and the remainder is in her and her husband as tenants in common, subject to open to let in other children of Elizabeth that may be born hereafter.
Our answer to the second question is that the defendants have no interest in the property, for the birth of Elizabeth’s child defeated the limitation to them.
The third and fourth questions we answer together. No estate in perpetuity is created in Elizabeth in the property by the will of Malie Kahai and Elizabeth does not have an estate tail in the property.
The fifth question is answered by- our reply to the first.
We wish to observe that there is no authority, statutory or otherwise, for the reservation of questions to this court by a Circuit Judge sitting in equity at chambers. The proper course