The Hawaiian gazette., 1872-07-17

, cd. - that the common law doctrine
. may be regarded as clearly stated by
, Chancellor Kent in the case cited, and
/. now the question arises, Is the claim tor
dover repugnont 20 the provisions Of
the deed OF truSt9 There are certain
purposes 10 be accomplished by 1t,
namely, "A homestead Is reserved and am
. income provided for the support ct the
wife and children, with "a reserve IN
come, supposed 60 be sufficient to pay
the membranes on the estate, So that
It may ultimately be saved tor their
: common beuetit.
What Is the effect upon the home
stead 70 set apart one third interest for
her exclusive benefit Does not TINS
defeat the purpose OF masking a com
mon home for the family
Would it not make a divided interest
between the mother and children, and
perhaps render necessary an entire
/ separation OF interests between them.
They have now home with common
interest, whlchlS wisely provided, and
/ setting apart one third would be repuc-
uaut 10 the intent and purpose OF the
deed.
The dover Is repugnaut to the pre-
vision for the payment of two hundred
dollars per month for the common sup
port OF the family from the estate OF
the National Hotel premises. Ii the
one third of the estate Is set aside, this
payment cannot be made unless very
important provision Tor the ultimate
payment OF the debts Is defeated
PuuOa is set apart tor home, and the
income from the Hotel premises Is set
apart to sustain 1t. By the terms Of
the trust, it is a common property Tor
the purpose OF making home for the
wife and children division OF the
property may defeat ii, and is certainly
repugnunt to it.
1t Is farther provided, that when the
mortgages shall be paid on the Hotel
premises. the trustees shall convey tue
same with all the personal property, 10
Anne Booth, in trust for the benefit of
herself and the children OF herself and
the said Joseph Booth, one third part
thereof being for the uses of Anne
Booth during her natural life. provided
she shall remain unmarried, and the re-
naming two thirds for the Use aud ben
eft OF their children and the issue of
those who may have died, sucu issue TO
have the share to which the parent. If
alive, would have been entitled. And
upon the deCeuSc or marriage OF the
o I'll Il. i
interest IN said Hotel premises shall
become the property OF the children IN
like manner as the two thirds part.
1t the dover Is assigned now. does
1t defeat the provision made for the
widow, OF one third interest for life In
the Hotel premises after the debts are
paid, or is this IN addition? II besides
this Interest, she Is to be allowed dow
or, there Is left one third interest for
the children. all OF which is 10 her own
hands IN trust. Tins Is entirely iucOu-
. Sisteut with the provisions of the trust.
Ii defeats the whole purpose of home
aud support for the children, and the
payment of the debts, which Is SO i'm
pUrJtut to Ill parties in interest.
Tn the case ct Allen V. PRAY. II
Maine, l3S. the husband devised to his
wife one third part of all his real es-
tate during her natural life, also one
third part Of his personal estate. to
hold to her heirs and assigns forever.
1t was contended in this action. 10
. recover dover. that IN "a testameutary
provision, in order TO bar the right of
dover, 1t must appear in express terms
to be IN lieu of dover. or 50 repugnant
10 the provisions OF the Will as to dis
turb and defeat them.
The Court say that if besides the
test9mentary interest Of one third, she
Is 10 be allowed dover instead of "a re-
mainder of two thirds for the children
and grandchildren, there will remain
one third OF four ninths of his tesla
mentary interest contributed to dover.
This claim therefore clearly disappuints
the Will and l. inconsistent with IT,
Ii the case Of Perkins vs.. Little,
Greenl. Rep. 1875, where the husband
devised TO his wife one third part OF
his real estate, to hold during the term
Of her life, and after providing for the
payment of his debts and certain lega-
cieS TO bis children, he bequea thed TO
her one third part of the residue Of his
personal estate. In this case. the party
did not claim To hold under the Will,
and her dover also.
In the case of Reed vs.. Dickinson,
12'Pick. l46, the Court held that un-
der the statute, the provision made by
the VIII, instead Of being presumed TO
be bounty In addition to dover. nc
cording 10 the English rule, VIII be
presumed to have been given instead
Of dover. By the rule Of the common
law. Justice Morton says, that devise
OF bequest TO Il widow Is presu ned 20
be in addition to her dover, unless It
clearly appears that II was the inten-
ton Of the testator that it should be in
lieu OF dover. By our statute. this
presumption Of law l. reversed, and the
provision IN the viii Is deemed to be
in lieu Of dover. unless it plainly ap-
pears that the teststor intended 1t 10
be IN addition TO it"
This l. the construction given by the
Court to a provision on the statutes Of
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