The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-02-12
Supreme Court of the Hawaiian
Islands.
KAHANAGKr wv, vs., THE KoHALA
SUGAR COMPANY.
Heard in vacation as of October FERN
1887. Jury waived,
BEFORE JUDD, c. !.
CINNAMON Of 80 1850 Lnda.


This is an action OF ejectment be-
gun Mt the July Term, 1887, but only
brought to hearing on the ID April,
lSSS, The plaintiff claims TO be en-
titled in fee simple by purchase To n
tract of land situate in Apuakohau
and kuhOiwaluhia, North kohala,
Hawaii, consisting of 1925 acres
granted TO one Kahoe by Royal Pa
tent number al5S, and the possession
of which is unlawtully withheld from
her by the defendant corporation.
The plaintiff introduced in evidence
copy of the will of Kahoe the grantee
of the government, claiming that it
devised this estate TO one kanakanui,
and also deed of same from said
/ kanakanui TO herself dated 18th July,
1880, and recorded in Liber 66, pages
/ lS5 and 6.
Hanakanui and kahoe were broth
erS and kahanaiki, plaintiff, is their
sister.
The defendant corporation disclaims
I rs TO one-half of the land Ii Kama
I kanui took the whole estate in fee
( from kahoe then plaintiff is entitled
J 10 recover all, otherwise she Is entitled
/ to recover one undivided half, j. G.,
/ one-Quarter by descent from Kahoe
and one-quarter by purchase from
I Kahananui.
| The Will of Kahoe is translated by
/ the Court Interpreter is follows:
WILL.
/, Kahoe ~, residing Mt Apuako-
I haU, kohala, Island of Hawaii, Ha-
waiian> Islands, hereby leave to Ka-
! hananui this Sth day of September,
/ year one thousand eight hundred and
siXty-SiN, he is the heir of my real
and personal property, saving that he
is not 10 sell or make improper leases
of it, then, ,if he does SOY our blood
relatives may instruct him if he vio-
lateS any of the directions set forth
above.
In witness whereof / hereby sign
my name this Sth day of September,
\. d. 1866. KAHoE.
Eye Witnesses: J. w. Moealoha,
kuae, Hakau, Nakapalaau.
think il was the intention of ka-
hoe TO create an estate in fee in Ka-
nakanui, although the estate is not
limited TO his ''heirs.m
An exception to the rule requiring
4 limitation TO "heirSn to create an
estate of Inheritance is where the
estate is created by devise. ain such
eases the intention of the teStator if
clearly expressed by his last Will,
will be sufficient TO create fee with
out the use of the word heir.'u "All
my property" has been held to be
sufficient, rs they show that the in
tention of the devisOr was manifest
that 4 fee should pass.
Wash. r. p $50
,}ackSOH Is. HOHSCN, Il Johns. PSI. |
In our case the testatOr leaves TO |
and makes kanakanui the heir of all /
his real and personal property.
Now, what Is the effect OF the sub |
sequent words of the will" Saving I
that he is not To sell or make imprOp- |
er leases of ii, and if he does so, then
our blood relatives may instruct him
if he violates any of the above direc-
TONS
These words must mean that Kama
kanui was not to sell or make imprO-
vident leases of the land, and if he
attempted to do so they could be
avoided by the testatOTS' and deviSees'
same persons. If the word "ao = in |
III N Eil-ttlls lLEAA4SldlCu lLASlI tut
cannot be held 10 mean the right of
the relatives to prevent the alienation
of the land by hanakanui, and means
that they are merely to advise or
instruct . him, it has no effect to
limit the character of the estate de-
vised TO him. But if this clause
means that the blood relatives may
prevent alienation, it Is an attempt 10
create condition against alienation. |
lone of the most important Incl
dents 10 a fee simple Is the right of
free and unlimited alienation, and a |
altogether preventing alien
alton iIf 4 devise of lands in fee simple
would be void, Is being repugnant TO
the estaten l Wash. r. P. 81.
No one can create what is in the
OF the law an estate in
fee and deprive the tenant of those
rights and privileges which
the law annexes to it. He cannot !
make = new estate unknown to the (
aw.m Dolbler's Appeal, 81 Penn. H. >
There are allowed in the law Ger. :
ain limited restrictions to the power l
If alienation to the devisee or grantee !
IF an estate in fee. But these con- >
iitiOnS as IN time when, and persons | 4
o whom alterations cannot be made 7
must be reasonable in order to their r
icing valid None such are dis :
lOSed in this case.
1t seems TO me that Kanakanui
egaried his estate as one upon con- \
iitiOn subsequent, and that his estate a
vas liable to be defeated if he should y
ell OF lease imprOyidently without u
he consent OF his brothers and sisters. 7
here is abundant testimony 10 this +,
feet. But l regard this condition a.
ne that Is incompatible with the r.
ature OF the estate TO which it was n
and by all the authorities If ! ;,
he condition is incompatible with a.
he estate in fee, then the effect is TO | :
snder the estate absolute in the Il
raRtee or devisee-" ~
> Wash. r. 2. z44S. -
Co Lit. 2O6 and 223, Sec. $50 Am. y,
d. Of 1851. ~
Blackstone Bank rs Darts, q Pick. h.
Brandon rs. Robinson, IS YES. 42g.
If Kanakanui miscOncieved the p
AZURE Of his estate and let his broth
3 and sisters and their children into
share Of the rents Of the land and
scli1ed to ALLEVIATE any portion Of it,
wing that his relatives were inter -
ted in 1t, this can have no effect to n
ter the legal character Of the estate
lat came TO him by the devise Of Is
-qhoc r1ulos= no has e-zfo7s1,e.5 I.froee1f ~