The Hawaiian gazette., 1870-04-27
supreme Coart-In Banco,
APRIL TkRx. 1870.
Na,:ghGn's WTR


Case submitted on agreed statement.
The following are the material facts submitted
viz Joseph Maughan. sea-, died in Honolulu, in
March, 1853, testaie, leaving certain land on the
Island Of Oahu. thus disposed Of in his will
which was duly prohated give. devise. and
bequeath to my wife, Hannah Maughan, during
her lifetime on condition that she provide for,
and take charge of my son Joseph Maughan. all
that property" etc at her decease. said prop
er,y to be equally divided between my two
children, Joseph and Elizabeth Msughan. share
and share alike"
The son, Joseph, died 10 November, 1889, de-
vising all his property to the said Hannah
Maughsn, mentioning in his Will. my half Of
the land, devised aforesaid His will was
duly admitted TO probate The said Hannah
Maughan died in June. 1869. leaving Nancy
Writ, her sister and party to this action. as her
sole surviving blood relation. The daughter,
EIiIsbeth, survives. and is party to this action
The question submitted is, whether by the terms
Of the viii Of the senior Msughnn, any dsyisable
estate vested 10 the son Joseph before the Wild
owis death, and whether the widows heir, Nancy
Writ. or the daughter. Elizabeth, is entitled to
the sons half
l. 2. JUDD, FoR TIE DAUGHTER, ELIzAsETH
xArGHAS ooLBuRS
If this was contingent estate, by the common
law Il vas not devisable. We claim that the
contingency Of the son surviving the widow. and
the iacs that be dId not survive her, and that At
her death there was DO person 10 being, desig-
mated by the will, to take the fee, is decisive OF
this case, provided the common law upon the
snbject is to be desred the law Of this country
The testator having 10 interest in this land which
be could devise by win the entire estate was
vested in the daughter. Wash. Real Prop. PA
R c. DAVIS. roR NANCY wIK1
The viii Of the 500, Joseph. must bold good
He had vested interest in the land, possession
Of which. BY himself or bis heirs. was postponed
to the widows death His interea was fixed,
not dependent on bis going to Rome, or doing
anything. or upon any condition. The autbOri-
ties are uniform ! Ken. 267 the ZupplieD
case. ..s u,
HAEIwEI1.. j.: IT, BY the common law Of Eng
land and the United States, the terms Of the
senior Ma1ghzn's viii would give devissble in
teresi, We have only to say whether the law Of
this Kingdom conforms thereto.
This case has been presented anicably, to OBJ
tain the ruling Of the Ceart bot as its decision
mast affect future czses If It shall stand as the
las Of the land. We have rot omitted to examine
fally the sniheritiss and principles involved, al
We have to aid rs, in the frsi place, the elab
erate opinion Of bis Honor. tine Chancellor, in
the Z1ppIien VIII case, 1t vas necessary, there.
TO decide vhether an estate devised in trust for
the widow aud son during her life, and at her
death. to the son and his heirs in fee, vested ia
the widow upon the son dying before her; Il was
held that the estate did not vest in the widow BY
lapse. bat that at Der dssth- the trustees must
pay Orer The principal To the executors Of the
sous viii We. think the opinion referred to,
and the authorities cited therein, corer the pres
ent case. ssd correctly state the law Of the land,
to-day
ASIDE from other considerations. ruling By .
Justice Of this Court 50 long aequiescsd IN BY
the coDmsnitg. shosld have great weight MI
nine s3Hf sssaaada qux i4tsprstaienen o~tens
semp9 aabuTsst The great object in quss-
tons Of property Is certainty. and If an erroneous
or hssty determination has got into practice.
there is more benefit derived from sdbsriBg to
it thar IL It we're overturned Mary estates may
be enjoyed under the authority Of Co1Essn W.
coaIsea, the tides 70 which would be shaken e
the decision IL that Gaze we're oseTrnlsd- It b
an esfzb8iEbsd FuIs 20 abide BY former preeedents
where the sane points cone again into HtigztioBs
a. zeII 70 keep the scales Of justice even and
steady. and not liable 70 EaEer With each new
judges opinion. As also because the IzE in that
ease being solemnIy declared and determined,
that Which vas before uncertain and perhaps IN
dfszre1t. is %. 5seoms permanent rule, which
it not 10 he breast Of any subsequent judss 70
sits. q vary fOu, souordiDg to his private jads-