23 Haw. 747 | Haw. | 1917
OPINION OP THE COURT BY
This is a writ of error to review the judgment of the circuit court of the first circuit in an action of ejectment to recover a tract of land situate at Hanohano, district of Ewa, city and county of Honolulu. The case was tried jury waived, and judgment was rendered in favor of the defendant.
The plaintiff claimed title to an undivided one-third of the land as one of the heirs of the bodies of Kahakuakoi and Kealohapauole, devisees under- the will of the late Bernice Pauahi Bishop, and as heir of a deceased brother. There was evidence that Kahakuakoi and Kealohapauole had three children, Niulii, George and Lydia; that Niulii died in 1890. leaving two children, Helen (the plaintiff) and John Paa-lua; that Kahakuakoi and Kealohapauole died respectively in 1910 and 1914; and that John Paalua died in 1915. It further appeared that the land was mortgaged on December 15, 1890, by Kahakuakoi and Kealohapauole to Bishop & Company, bankers, and was sold under foreclosure of the mortgage on January 28,1893. Through mesne conveyances
The testatrix died October 16, 1884. In the fifth paragraph of her will she said “I give and bequeath unto Kaha-kuakoi (w) and Kealohapauole, her husband, and to the survivor of them, the sum of Thirty Dollars ($30) per month, (not $30 each) so long as either of them may live. And I also devise unto them and to the heirs of the body of either, the lot of land called ‘Mauna Kama.la,’ situated at Kapalama, Honolulu; upon default of issue the same to go to my trustees upon the trusts below expressed.” The clause was modified in the eleventh paragraph of the first codicil to the will, as follows: “I revoke so much of my said will as devises the land known as ‘Mauna Kamala’ to Kaha-kuakoi (w) and Kealohapauole her husband; and in lieu thereof I give, devise and bequeath unto said Kahakuakoi (w) and Kealohapauole (k) all of that tract of land known as Hanohano, situated at Ewa, Island of Oahu, formerly the property of Puhalahua; to have and to hold as limited in said fifth article of my said will.”
On behalf of the plaintiff in error (also plaintiff below) it is contended (1) that at common law the devise would
On behalf of the defendant in error it is contended (1) that the words “heirs of the body of either” are words of inheritance andu not of purchase, and the estate would be
The will and codicils were drawn with much care and accuracy of expression. It appears from the record in the proceeding for the probate of the will which is in evidence in this case that they were drafted by Francis M. Hatch, at one time a justice of this court, but the language used must, of course, be regarded as that of the testatrix herself. It is obvious that the testatrix knew how to express an intention to create a life estate and remainder, as well as to devise in fee simple. Thus, in the fourth paragraph of the will, there was a devise of land to L, “to have and to hold for and during the term of her natural life; and after her decease to my trustees upon the trusts below expressed.” There were a number of such life estates given by the will and codicils. In the ninth paragraph of the first codicil there was a devise of land and a fishery to D, “to have and to hold with the appurtenances to him, his heirs and assigns forever.” In the fifth paragraph of the first codicil there was a devise of land to K and H, his wife, “to have and to hold
The word “heirs,” though it may be and sometimes is used as a word of purchase, is primarily, ordinarily, and in a strict technical sense, a word of limitation denoting an estate in fee simple. 40 Cyc. 1574; 2 Jarman on Wills (6th ed.) 69; Thurston v. Allen, 8 Haw. 392, 402; Ninia v. Wilder, 12 Haw. 104, 108; Iuko v. Holt, 9 Haw. 88, 91. And, at common law, after the enactment of the statute de donis conditionalibus in 1285, the phrase “heirs of the body” was the ordinary, proper and technically accurate one to use in the creation of an estate in fee tail. 2 Jarman, supra; Rooke v. Queen’s Hospital, 12 Haw. 375, 390; Nahaolelua v. Heen, supra, at p. 376. In Pearsol v. Maxwell, 68 Fed. 513, where there was involved a devise to one and “the heirs of her body,” and a contention was advanced for a life estate and remainder, the court said, “These are the aptest words for the creation of an estate tail. Standing alone, they would admit of no other interpretation.” And that they “are strictly and technically words of limitation.” And in the same case on appeal the court said, “that these words, if alone considered, created an estate tail, is horn-book law.” 76 Fed. 428. The technical meaning of words used in a will may be subordinated to the real intent of the testator, but the presumption is that technical words were used in their technical sense, and they will be so construed unless the context shows a- clear intent to the contrary. 40 Cyc. 1398; Land Co. v. Barker, 60 So. (Ala.) 157; Morse v.
It is contended that the use of the words “of either,” the devise over upon default of issue, the word “limited” in the phrase in the codicil, “to have and to hold as limited in said fifth article of my said will,” and the fact that the annuity given by the fifth paragraph of the will was for the life of the annuitants and the survivor of them merely, tend to show an intent on the part of the testatrix that the devise of the land was to be for life only in the first takers. It is argued that the words “of either” in the phrase “and to the heirs of the body of either,” would prevent Kahakua-koi and Kealohapauole from taking more than a life estate because each of them might have left heirs, not of their joint bodies, who could not take by descent from the other spouse and, hence, could take only as purchasers. And so it is urged that, in order to carry out the apparent intention, the estate in the first takers must be held to be an estate by the entirety for life, and those of the heirs of the
The rule is invoked that in case of doubt a testator will be presumed to have intended a legal estate rather than an illegal one. And it is urged that as fees tail cannot exist in this jurisdiction it should be presumed that Mrs. Bishop did not intend to create an estate in fee tail by the devise in question. The presumption does not operate with much force in the case at bar since an impression seems formerly to have existed — how prevalent it was we do not know— that fees tail could exist here, and there was no reported ruling to the contrary till the case of Rooke v. Queen’s Hospital was decided in 1900. In a jurisdiction where fees tail have been abolished the courts would be slow to construe a will executed after the abolition as intending to create such an estate. Such an intention would not be implied. But where the language used in a will shows unmistakably that such was the intention or attempt of the testator the courts cannot do otherwise than recognize the fact and give such
It is definitely settled that an estate tail cannot exist or be created in this Territory. Rooke v. Queen’s Hospital, supra; Nahaolelua v. Heen, supra; Boeynaems v. Ah Leong, supra. In the absence of statute, what is the proper course for the court to pursue in a case like this? The ruling in Nahaolelua v. Heen was to the effect that the attempt to create a fee tail may be given the effect of creating either an estate in fee simple in the first taker, or a life estate in the first taker and a remainder in fee simple in the issue, according to whether the one effect or the other will go more nearly towards carrying out the intention of the grantor or testator in each case. The other alternative would be to hold the entire grant or devise to be void. But that course has not been adopted here or elsewhere. Here, the plaintiff in error contends for a life estate and remainder on the ground that the will shows an intention on the part of the testatrix to benefit the heirs of the body of the first takers, and, further, because the testimony in the case shows that the plaintiff’s grandmother was a cousin of the testatrix, and that the testatrix showed a personal interest in the plaintiff’s mother and a practical interest in the welfare of the plaintiff herself. There is nothing in the will, however, beyond the mere limitation to the heirs of the body to indicate that the testatrix intended any benefit to the heirs of the first takers, and, as a futile attempt to create an estate in fee tail is not to be held in every case to create a life estate and remainder, it does not afford a sufficient reason for so holding in the present case. The case of Nahaolelua v. Heen involved the construction of a deed. It there appeared that on August 10, 1871, one Elizabeth K. St. John, the mother of the plaintiffs, in contemplation of marriage, conveyed certain land to trustees to hold upon trust for the use of the trustor until her marriage to
In a jurisdiction where fees simple conditional, but not fees tail, are recognized an unsuccessful attempt to create an estate in fee tail might take effect as a fee simple conditional. See Archer v. Ellison, 5 S. E. (S. C.) 713; Pierson v. Lane, 60 Ia. 60. But it was pointed out in Rooke v. Queen’s Hospital, supra, at p. 394, that, for the same reasons that estates tail have no place under the laws of Hawaii, fees simple conditional cannot exist here. In Jewell v. Warner, 35 N. H. 176, the court, after showing that the statutes of New Hampshire relating to wills and the descent of property were irreconcilable with the statute de donis and repugnant to the nature of estates tail, said (p. 185), “The restrictive words added to ‘heirs’ ‘of the body,’ or ‘male or female of the body,’ or ‘by the body of any particu
We hold that Kahakuakoi and Kealohapauole took under the will and codicil an estate in fee simple in the land in dispute, and that the plaintiff has no interest therein.
The judgment of the circuit court is affirmed.