The Hawaiian gazette., 1892-01-05
THE ROBINSON WILL CASE.

The argument in the Robinson
will case occupied three days in the
Court in bsnco last week. The
questions involved are of such gen.
eral interest that We will, at the risk
of emitting some essentials, try to
state them. James Robinson by his
will devised certain real estate to
each of his sons Mark and John. for
life, over in fee to their respective
heirs. He devised the residue Of his
estate to his executors in trust to
pay the income in equal shares to
each of his six daughters and two
sons, and at the death of each 10
make over to heirs of such deceased
child the principal of the one-eighth
share.
The will gives the trustees power
of sale of the trust property. Some
of the daughters were married at the
testator's death and all are now mar
ried. John died testate, leaving no
children, and devising all his prop
erty to his widow, who claims that
the will gave him the fee simple in
the land which had been devised to
him for life, and the absolute owner
ship of the one-eighth share of the
residue which had been devised to
trustees in trust to pay him its in
come during his life.
By the famous rule in Shelley's
case, adopted in early feudal times
as part of the common law of Eng.
land, the fee in this real estate
would go to the sons, in spite Of the
testator's intention to the contrary,
and as to the trust property, an Eng
lish statute OF Henry VIII. called
the Statute of Uses takes out of
trustees their legal estate in what
are called dry trusts, or trusts which
require no active duties, nothing
but holding the estate to the use of
the benefciaries, and transfers it to
the latter, SO as to let into operation
the above named Shelley rule, Civ
ing the benefciaries the absolute
ownership.
But no such result followed if the
trust required the trustees to per-
form any specified duties concern
ing the trust property.
The widow of John claims. how
ever, that she has the absolute
ownership Of one eighth of the
residue, on the doctrine that
equity follows the iaw," whence, as
her counsel claim, equity will regard
her husbands interest in the residue
as legal and not an equitable es-
tate.
There is too a question whether
the widow, who would be her hus-
bands statutory heir if lie had died
intestate, can take anything under
his fathers will if the rule
invoked in her behalf is not
Hawaiian law. The children
and trustees claim that the will was
meant for nothing else but to keep
their fathers property in his family,
and that he meant that heirs should
include only the blood relations ac-
cording to its strict meaning, al!
though not according to the statu-
tory course of descent of property
from persons dying intestate.
The extremely important point for
decision is whether English com
mon law is Hawaiian law when not
opposed to our statutes or customs.
This is the claim of the lawyers for
the widow, and they point to the de-
clslons OF our courts to show that it
is that law which has been ruled
uoon here.
The opposing counsel claim that
Hawaiian law is not based on any
system of foreign law, and that the
only legitimate force of the common
law IN this country is derived from
such of its rules or principles as are
founded in justice"
Both sides, as we understand,