The Hawaiian gazette., 1889-09-10

Dickson was absolute, there being
no trustee to hold the intermediate
estate between the death of the
testatrix and the vesting of the
estate absolutely in defendant, Dick
son, therefore he had no estate
contingent or vested in the estate
of Mrs. Bates returnable by him in
his schedule as an asset. 1t was
not the intention of the testatriX to
give Mrs. Dickson an estate for life
only, but by the terms of the devise
an absolute power to hold and en-
JOY the same as she thought proper.
This would have authorized an alb
sOlute disposition or sale of the
property during her lifetime. There
was no liability from Mrs. Dickson
to her children or grandchildren.
No estate passed or vested in Dick
son until the death of his mother
it was contingent remainder based
upon the survival of the mother,
but vested to save lapse in any
children of defendant, that might
be in eSSe at the death of the tesla
triX or born during the life of Mrs.
Dickson, or in other words, an es-
tate in expectancy, of which he
was to have the possession only if
he survived his mother.
| Counsel cited Jarman on Wills,
Chap. 25; Smith Us. PendeN, 10
Conn.,, 112; Moody rs. Walker, 16
Vesey Jr., 2S3; Leak Us. Robinson,
. Me-, 1868; Lock as. Lamb, L. r.,
4 Ed, 6, 372; OJ'aey Us. Hull, 81
Pick, 311; Parker as. Crosby, 80
Barb, 1874; DaiRtry as. Daiatry, 6,
T. R., 307; Re,Calts Us. UIrick, %,
Penn. St., 388; amelia Smith, APP.
ID. 9, 42O of Motdtt rs. Strong, 10
John, y.
Mr.. Neumann, on behalf of the
defendant, Patty, contended that
the authorities cited by counsel for
defendant, Dickson, do not support
the proposition that no estate in
remainder or by eXecutOry devise
in personal property can be created
by will. The bequest over to the
children of Mrs. Dickson is vested
and not a contingent remainder.
A remainder is an estate SO limited
as to be Immediately eXpectant on
the natural termination of partic
ular estate created by the same in
strument which calls its life into
the particular estate. a cOntin-
gent remainder arises where the
estate is limited to take effect be-
fore or after the termination of the
particular estate and not at its ter
mination, and depends upon the
happening of an uncertain event.
The will of Mrs. Bates allows of no
other construction than that the be-
quest to the defendant, Dickson, is
not a contingent but a vested re-
mainder, which took effect upon
the termination of a life estate
granted to his mother.
/ have considered the various
authorities cited and also the facts
as they appear in the pleadings,
and am of opinion that the share of
the defendant, Dickson, in the
residuary estate of Mrs. Bates
vested in him at her death, subject
to be devested only on his death
during the life Of his mother, hay
ing no children, and therefore that
the defendant, Patty, as assignee in
bankruptcy of the defendant, Dick
son, is entitled to the fund in
Court.
The contention made ON behalf
of the defendant, Dickson, that per-
sonal estate cannot be the subject
of estate Gnterests) other than alb
solute ownership, cannot, l think,
be supported.
In " Amelia Smiths appeal" %
Penn. 8, the words in the will
were: 81 will and bequeath all
my property, real and personal to
my children to be equally
divided between them. In case of
the death of my children without
issue his, her or their portion or
portions to be equally divided
among the survivors" and the
Court say: "There is nothing in
this devise to take it out of the
general rule, not one word indicates
an intention to limit the first takers
to life estate"
In Mrs. Bates will it seems to be
beyond contention that Mrs. Dick
son took only life interest in the
residue.
In The Executors of No6att Us.
Strong, 10 John, II, the bequest
was to the heirs, and if any should
die without issue to be divided
among the survivors," the Court,
per Kent G. j., held that it was an
executory bequest and approved
the doctrine laid down in Nichols
u.s. Skinner (Prec. IN Chan. 52S)
that personal property may be be-
queathed subject to limitation.
"The limitation being valid the
general rule is that the devisee has
not power to defeat it. X The
devisee has only the use and not
an absolute interest in the property
devised"
In Hyde Us. PdTTat, l Peere Will