The Hawaiian gazette., 1889-09-10

money may be devised to one Tor
life, remainder over" This case
was decided in 1920.
In Lock as. Lamb, l.. r., 4 Eq.
374, it was held that bequest
to children, as they shall attain
twenty-one, to take effect upon the
death of an annuitant vested the
property personaD in them at their
birth subject to their attaining that
age.
In .Smither as. WiUcock, 8 Yes.
Jr., 233, the testator bequeathed
personal estate and money arising
from sale of real estate to his wife
for life, and from and after her
death the capital to be divided be-
tween the testator's brothers and
sisters, named) in equal shares,
but in case of the death of any of
them in the lifetime of the wife
the share of him or her so dying to
be divided between their, his or
her children. One of the testator's
brothers died in the lifetime of the
testatOr's widow without having
had child. The Master of the
Rolls (Sir William Grant, declared
the share of the deceased brother to
be vested, subject to DE devested
only in the event of his death in
the lifetime of the testator's widow
leaving children and consequently
that event not having happened
his representative was entitled.
In Smith Us. Ostrdnd, GA n. Y,
27S, it was held that a remainder
may be limited upon a bequest of
money as well as of other personal
property, and the testator may con-
fide the money to Iegatee for life,
trusting that such legatee will pre-
serve the fund for the benefit of
the remainder man, in which case
the legatee for life becomes trustee
of the principal during the continu-
ance of the life estate"
See also Maughan's Will, Haw.
233; Harrison as. Foreman, 5
Vesey Jr., 207; Barker Us Crosby,
80 Barb. 1874.
Section IA of the Bankruptcy Act
enacts that "The bankrupt shall be
Invested of all his title and interest
in his property from the day of his
failure" and l therefore hold that
the defendant, Dickson, was by OPP
Grafton of law Invested of his inter-
est under the will of Mrs. Bates
upon the filing of his petition and
that such interest became vested in
his assignee, Patty.
The decree will allow the plain
tiff his costs out of the fund in
Court and will contain declaration
according to this decision.
1 have not thought it necessary to
decide whether property acquired
by bankrupt after adjudication
and before his discharge, would
belong to his assignee, as the point
| does not arise in this case.
Concurrtag Opinion Of Dole, J.
|
The case of Smith Us. Bell, above
quoted, bears strongly upon the
main question in this case, and, if
it may be relied upon as authority,
is probably sufficient to carry the
point; but its value as precedent
is questioned by Judge Hoar in
Gitard as. Ooate, 1Oo Mass, 346)
as follows:
An absolute power of disposal
in the first taker is held to render
a subsequent limitation repugRant
and void. A somewhat different
doctrine is perhaps to be found in
Smith Us. Bell, 6 Pet, 6S W., there
legacy to a wife ito and for her
own use and benefit and disposal
absolutely; the remainder of said
estate, after her decease, to be for
the use Of the testator's son, was
held to create a life estate only in
the wife with a vested remainder
in the son. The authority of the
decision is somewhat impaired by
the circumstance that no counsel
were heard on behalf of the party
against whom it was made, and
the attention of the Court does not
seem to have been drawn to the
authorities in favor of the opposite
conclusion. But the decision is
made to rest upon the fact that the
remainder was the only substantial
provision made by the will for the
testator's only child and there
were no words directly extending
the wife's interest beyond her own
life"
In the case of Harris as. Knapp,
(21 Pick, Ais, 416) it was held
that a devise "to my said daughter
Mary Harris, for her use and dis
posal during her life, and whatever
shall remain at her death, 1 give
the same to her two daughters,
Dorothy and Sarah in equal shares"
gave the devisee a right to dispose
of the whole principal. The cases
of Attorney General as. Hall, (Fitz-
gibbon, 314 Jackson as. Bull, 30,
Johns. 1S), Ide Us. Ide, 10 Mass,
5O4), Burbank Us. Whitney, "a
Pick, 146) and many others have
adopted the same principle of con-
struction. The words of the devise