The Hawaiian gazette., 1889-09-10
Bill Of HlterpyeddeT.

found below in the opinion Of Mr..
.Justice Preston, from whose decree
appeal was taken. We affirm the
opinion and decree therein, with a
brief exposition of our views.
The case turns on the construc-
ton 10 be given TO the following
clauses in the will of Mrs. Catharine
Bates. admitted to probate in 1888.
wI give all the residue of my prop
ertv of whatsoever character to my
sister Sarah, Mrs. Dickson,) for
her life, to hold and enjoy in all
respects as she shall deem wise and
proper with remainder to her child
rem" The question is whether
this created a life estate with a
vested remainder, or was an abso-
lutte devise to Mrs Dickson.
If the words " in all respects as
she shall deem wise and proper"
had been omitted, a contention that
the former was not the legal effect
of the will, could only be main
tanned on the common law doctrine
that there could be no limitation
over of a chattel, and that a gift for
life carried the absolute interest.
This Is claimed by counsel for the
defendant, NJ. Dickson.
This doctrine may be considered
to have become obsolete, by the
distinction taken between the use,
and property, which resulted finally
in the doctrine that a gift for life
of chattel was a gift Of the use only
and the remainder over was good
a. an executory devise. The eX-
ception to this rule is the necessary
one in the case of a bequest of
specific things which can only be
used by the consumption of them,
Is wine, corn, hay and fruits.
Kent's Com, ,, $50. Porter rs.
Tourney, YES, 81. In Smith as.
Bel, 6 Peters, at p. rs Chief JUS
tee Marshal says: "The rule that
a remainder may be limited after a
life estate in personal property is as
well settled as any other principle
OF our law" and in Allen Adam rs.
Carpenter, u Cush., at page 3S7
Chief Justice Shaw says: We
have no doubt that personal prop
erty may be given to one for life,
with a remainder to another absO-
lutely." There is no reason in our
view why we should adopt now
this antiquated common law rule
in order to defeat an obvious inten-
ton of the testatOr.
This is a devise to the sister to
hold and enjoy for life with remain
der to her children.
Against these plain and legally
well understood words, is set the
expression, Gin all respects as she
shall deem wise and proper" and
it Is claimed that they are repug-
nant to and defeat the provision for
2 life estate and remainder. But
if they were repugnant why should
it be considered that they FREEDOM
mated and controlled the other
plain terms of the clause? The
plain legal phrases which gave a
life estate and a remainder should
rather predominant and, if need
be, abrogate the weaker indeter-
inmate phrase. We do not, how
ever, see that there is Il repug-
nancy. The words have not very
definite meaning. They are I'M
necessary, but not conflicting with
the estate which is clearly estab-
lished by apt legal words. We
read them as superf1uOusly express
ing that the devisee was to have
an unrestricted enjoyment of the
life estate. 1t was not under the
control of trustees. There was no
Limitation of the uses to which the
income might be employed. There
was power (Which would have
existed without these words) to
change the form of investment.
But they do not eXtinguish the
vested remainder.
In Smith as. Bell, quoted above,
the words of the devise were: al
give and bequeath my personal
estate unto my said wife to and for
her own use and benefit and dis
posal absolutely; the remainder of
the said estate after her decease, to
be for the use of my said son. The
Court held that as the intent was
clear to make a present provision
for the wife and a future provision
for the son, the last clause, estab-
fishing a remainder could not be
expunged or rendered totally in
operative by the words " disposal
absolutely" In Smith as. Van
OStrdad, Ga n. Y, the Court of
appeals held that a remainder may
be limited upon a bequest of money
as well as of other personal prop
erty, and the testator may confde
the money to a legatee for life,
trusting to such legatee to preserve
the fund for the benefit of the re-
mainder man; in which case the
legatee for life becomes trustee of
the principal during the continu-
ance of the life estate.
The construction We give is fully
supported by the reasoning and the
authorities cited by the learned