8 Haw. 392 | Haw. | 1892
Opinion of the Court, by
We shall first discuss the first and fourth paragraphs of the will in question, and much of the reasoning on these paragraphs will apply to the seventh paragraph. Eliminating therefrom
We adhere to the doctrine laid down in Awa vs. Horner, 5 Hawn., 543, that it would be unwise to adopt the principle of joint tenancy, where a conveyance is made to two or more persons without indicating how the same shall be held. Such estates wé consider to be tenancies in common, unless expressly declared to be joint tenancies by the instrument creating them.
The plaintiffs contend that the Rule in Shelley’s Case is in force in this kingdom, or if not in force it should be recognized
In the case before us James Robinson, by paragraghs 1 and 4 of his will, devised certain estates to John for life, and after his death to his heirs. By the rule under discussion John took an estate of inheritance in fee simple in the land upon the death of his father, with the unrestricted right of disposition. This is a rule of law and not of construction, and in all jurisdictions where the common law is in force, unrepealed by statute, estates within the rule are controlled by it. This rule takes its name from an early case reported in 1 Coke’s Reports, .93, in the 23d of Elizabeth, about A. D. 1580, as Shelley's, though it was then an ancient dogma of common law.
The fundamental question for us to decide is, first, whether this rule is in force in this kingdom and, secondly, whether we shall
This Court is authorized to adopt the reasonings and principles of the common law “ so far as the same may «be founded in justice and not in conflict with the laws and customs of this kingdom,” Section 823 of Civil Code; and “Resort may be had to the laws and usages of other countries,” Section 14 id.
We and our predecessors on this bench, have felt free to examine into the reasoning of every principle of the common law as it has been presented to us for adoption from time to time. We were much impressed with the statement made at the argument by Mr. Peterson, of counsel for the plaintiffs, that
Having declared that this Court is free to adopt the Rule in Shelley’s Case, or to reject it, we now discuss the considerations which should control our judgment. In the first place, if the theory which gave it birth was in order that the “ lord might not be deprived of his wardship by allowing the heir to take as purchaser instead of by descent,” (2 Wash. R. P., 269) or whether because of the aversion of the common law to an inheritance being in abeyance, we answer that these reasons are inapplicable to our circumstances. There is more force in the argument that it should be adopted because it favors the free alienation of land. But it became law in England when the right of alienation of land was not favored by the lords of the landed estates.
If it is such a wholesome rule and so important to establish in this Kingdom, why have some twenty-three States of the American Union, where it was a part of their fundamental law from its colonial period, or adopted by its early statutes or con
The most cogent reason advanced against the adoption of the rule, is -that it defeats the intention of the testator in many cases. That it would defeat the intention of James Robinson, as expressed by his will, is clear. He has expressly made known by his will that his wish was that his sons should enjoy the use of his landed property only during their lives, and that after their death it should go to their heirs. He had reasons for this sufficiently strong in his own mind. He wished to keep this property intact during the lifetime of his sons, or until one should die. That this wish has been accomplished by reason of the fact that this question was not raised until the death of one of them, has no force as an argument.
The application of the Rule in Shelley’s Case to this will would undoubtedly defeat the testator’s intention. Ch. Kent says that though this rule has been firmly established as an axiom of the English law of real property for near 500 years, it is admitted to interfere, in most cases, with the presumed, and in many others with the declared intention of the parties to the instrument to which it is applied. 4 Kent Com., 218*. Note 1 to Section 332 of Jarman on Wills, by Bigelow, says that the tendency of the American cases in such States (where the rule in Shelley’s Case is in force) “ is strongly in the direction of giving effect to the intention of the testator, whenever there is indication, however indirect, of a knowledge of the existence of the rule, and of a purpose to escape its consequences, provided the language of the will is sufficient for that purpose,” citing Lytle vs. Beveredge, 58 N. Y., 600 ; Huber's Appeal, 80 Penn. St., 348, etc.
Chancellor Kent says in 4 Kent’s Com. 534*, of the Constructions of Wills : “ The intention of the testator is the first and great object of inquiry, and to this object technical rules are,
The plaintiff’s counsel claims that the Court has recognized the existence of the Rule in Shelley’s Case in a decision reported in 6 Hawn., 692 — Ohillingworth vs. Lindsey. This decision was by the late Justice Preston and did not go to the Full Court. But here the Judge held that the facts took the case out of the rule and he did not discuss the question whether the rule was in existence or not, for it was unnecessary to do so for it was not the issue before the C«urt.
Another position by the plaintiffs is that as the words used in the royal patents granting lands in this Kingdom are to “A and his heirs and assigns,” the Government and the country have recognized and acted upon the rule in Shelley’s Case.
It is undoubtedly true that by the common law of England the use of the word “ heirs” was necessary in a grant in order to create an estate in fee or an estate of inheritance. “ If the gift was to one without any words of limitation, it was only for such a term of time as he could personally hold it, namely, for his own life. But if given to one and his heirs, it was understood to pass in succession after his death, without being subject to his control by any act done by him, to his descendants who were recognized by the feudal law as his heirs.” 1 Wash. R. P., 28. Now, although the adoption of the principle, that the word “heirs” is a word of “limitation” and not of “purchase,” undoubtedly led up to the adoption of the rule in Shelley’s Case, yet it is not correct to say that the adoption by us of the principle, that a grant or devise “ to A and his heirs” creates an estate in fee in A, would make it necessary to adopt the rule in Shelley’s Case and thus destroy an estate carved out for life in A, because
It was clearly the intention of the King and G-overnment in the use of the word “heirs” in royal patents to give an estate in fee simple to the patentee, and it was introduced to define the character of the estate in the patentee. This is supported by 2 Redfield on Wills, 341. But it does not become necessary in this case to discuss the question whether an estate in fee can be created by grant or devise without the use of the word “heirs.”
As regards the seventh paragraph of the will, or the trust clause, we have listened to the able and exhaustive arguments by counsel for the plaintiffs and for defendants on the question whether the devise in this paragraph is within the rule in Shelley’s Case. It was admitted by counsel on both sides, and it is undoubtedly law, that both estates, the freehold and the remainder, should be legal or both be equitable or the rule will not apply. Counsel for plaintiffs contend that the trust created in the executors by this will is an active, private, executed trust, and therefore a legal estate. But, having come to the conclusion that the rule in Shelley’s Case is not to be applied to any of the devises or bequests in any of the paragraphs of this will, we deem it unnecessary to encumber this opinion with the discussion of the question whether both estates are legal, or whether the estate of the executors (trustees) is equitable and that of the heirs of John legal.
A valid trust was created by the seventh paragraph of' the will, and must continue so long, as any of the eight mentioned children of James Robinson survive. We therefore answer the first question of the submission, as follows: John N. Robinson took, under the first, fourth and seventh paragraphs of the Will of James Robinson, an estate for life.
The remaining question is, “To what estate is the said Caroline J. Robinson entitled?” She is the widow of John N. Robinson, who died without issue. The fact that John devised all his estate to Caroline, his widow, is- of no special importance so far as the property left by the will of his father is concerned, ■for, as his interest in it was for his life only, he could not de
By the seventh paragraph, one-eighth of all the rest and residue of the property, both real and personal, goes now to the “heirs” of John N. Robinson. The exact words of the paragraph are, “one-eighth to my executors, hereinafter named, in trust, the income from the same to be paid in quarterly payments to my son, John N. Robinson, for the term of his natural 'life, and after his death I give, devise and bequeath the said one-eighth to his heirs.” It is not one-eighth of the income that is devised to John’s heirs, but one-eighth of the corpus of the estate.
Who are the heirs of John N. Robinson? If he had died intestate, by our statute of descent his widow (he dying without issue, and his father and mother both being dead,) would be entitled to one half of his property, both real and personal, and his brothers and sisters to the other half. Civil Code, Section 1448. That a widow is a statutory “heir” of a deceased intestate is clear by Section 1447 of the Civil Code, which reads that the property, both real and personal, of a person dying intestate within this Kingdom shall descend to and be divided 'among his heirs, as hereinafter described. * * * “if pe shall leave no issue, nor father nor mother, his estate shall descend, one half to his widow, and the other half to his brothers and sisters, and to the children of any deceased brother or sister, by right of representation.”
It is unnecessary to discuss many of the cases cited, which declare that a widow is not an heir. She is recognized as one by our statute. She is even considered one of the kindred. “If
It is claimed that the strict, technical meaning of the word “heir” is what James Robinson intended, that is, heirs of the blood of the ancestor. We find nothing in the will to indicate this. The Statute of Descent, quoted from above, was in force at the time James Robinson made his will. We must presume that he meant by “heirs” those who, by the Statute of Descent, would take the property. It would have been easy for him to have limited the word “heir” to those of his blood — but he did not.
In this Kingdom real as well as personal estate of an intestate descends together by the same statute to a person’s heirs, there being no distinction between the descent of realty and personalty. We must bear this in mind, for many of the cases cited are from states where the “heirs” take real estate but the personal estate is distributed to the “next of kin,” according to the Statute of Distribution.
In Tillman vs. Davis, 95 N. Y., 17, the Court say: “The primary meaning in the law of the word ‘heirs’ is the persons related to one by blood, who would take his real estate if he died intestate. The proper primary signification of the words ‘next of kin’ is those related by blood who take the personal estate of one who dies intestate.” The decisions in New York State are to the effect that a widow is neither an “heir” or “next of kin” to her husband. It is held in England that by the words “heirs of her late brother, J. S.,” was meant the next of kin of J. S., according to the Statute of Distributions, together with the widow of J. S., if living at testatrix’s death.” In re Steevens’ Trusts, 15 Eq. Cases, L. R., 110. In the following cases the word “heirs,” when applied to personal property, mean's “those that by the Statute of Distributions take the personal property in case of intestacy, and hence embraces widows.” Eby’s Appeal, 84 Penn. St., 241; Sweet vs. Dutton, 109 Mass., 589; Welsh vs. Crater, 32 N. J. Eq., 177; Collier vs. Collier, 3 Ohio St., 369.
Lavery vs. Egan, 143 Mass., 392, bears a close analogy to the
We adopt this reasoning. We know of no way of ascertaining who James Robinson intended by the “heirs of John,” except by ascertaining who would inherit John’s estate, if he had died seized of it and intestate. This same construction was put by Judge Cooley on the word “heirs,” in Hascall vs. Cox, 49 Mich., 435.
We therefore answer the last question in the submission as follows: Caroline J. Robinson is now entitled to one quarter of the lands mentioned in the first and fourth paragraphs of the Will of James Robinson, that is, one half of John’s half, and to one half of the eighth, that is, one sixteenth of the estate mentioned and described in the seventh paragraph of the said will, as devised to John.
Costs divided.