The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1892-02-18


v both real and personal give devise and bequeah to my
hereinafter named in trust the income from the
he paid in quarterly payments here the children
other than John n Robinson devised one eighth each
One eighth to my hereinafter named i'll trust the
income from the to be paid in quarterly payments to
my John n Robinson for the term OF his natural Lie
and after his death give devise and beqaeah the said one
eighth to his heirs.
By TIE CcgRT.
We shall first discuss the first and fourth paragraphs of
the will in question: and much of the reasoning these par
agraphs will apply the seventh paragraph Eliminating
thererom what unessenta be discussed here the de-
vses of the land latter the lie estate of the tesator widow
in the land in the first paragraph to Mark Robinson
and John n Robinson the of their natural lives to
share and share alike and after the decease OF Mark half
to heirs and the decedse of John hall to his
heirs Condensed still further the question what the
cf John in the property TIE devise being to him for
life tenant with Mark, remainder of the moey
his hers We the expression as tenant in common
advsed The contention by Ashford Ashford for the de-
PENDANTS that the words of paragraphs first and fourth create
joint tenancy in the estators two Mark and John
with tie right of survyorshp without foundation The
distinguishing feature OF joint tenancy that each has the
whole and every part each holds per n per tout each is
the holder of the whole The definition quoted by counsel
from Greeneas Cruise p 1884, where lands granted to
more persons to hold for them and their heirs
,ritho eng restrictive, ercusivs explanatory cord all the
persons named ill such instrument take joint estate de-
stroys the position taken The words i'll the devise, that
Mark and John to share and share alike show conc
svely that each is to have and enjoy half which would
make them tenants in common and that each IS not to be
holder of the whole Moreover the limitation in the devise
of the share of each in the estate to tie heirs OF Mark and
John after their decease respectively is it's face reug
nnt to the vestng of the estate in the survivor be it Mark
OF John See Perry Woods, Yes. Jr, 224.
We adhere to the doctrine laid down i'll Ava Horner
Hav 543 that it would be pnwse TO adopt the principle
joint tenancy where conveyance is made to two more
persons without indicating how the shall be held Such
estates we consider be enancies in unless
pressy declared be joint tenants by the instrument
atng them.
The plaintiffs contend that the rule in Shelys is IN
force in this kingdom not in force it should be recog
nzed and adopted in this case and that according to the
several devses in the various paragraphs OF the will in
ton they being devises John Robinson for lfe remains
r to his heirs created estate in fee simple in John
that it was aenabe by him during his life and devsabe by
him by his will # vas admitted and there doubt that
by the rule in Shelly case it is law in ia kingdom the
devises in paragraphs first esd fourth VIC, Id confer such All
estate upon John, passing by for the present the NStio
whether paragraph seven within the rule The rule may
be stated thus where the devise of freehold is limited
for life and by the devise conveyance the
der is limited to CAS- heirs has single estate of nher-
lance the property The word heirs is word of limit
alton of AS the first takers estate and heirs under such
devise conveyance would have greater right than the
heirs of any grantee in fee where the conveyed
directly to the grantee and his heirs That is the heirs of
take by descent from and not purchasers under
the granor devsor of A Jarman defines the rule thus
where estate of freehold is limited person. and the
instrument contains limitation either mediate i'm
mediate his heirs the heirs of his body the word heirs
is word of limitation, e. the ancestor takes the whole
estate comprised in this term.
In the before James Robinson by paragraphs and
of his will devised certain estates to John for life and after
his death to his heirs By the rule under discussion John
took estate of Inheritance i'll fee simple in the land upon
the death of his father with the unrestricted right of dspo
ston This is rule of law and not of construction and in
all jurisdictions where the law is in force unrepealed
by statute estates within the rule are controlled by it. This
rule takes its from early reported in Cokes
Reports 3d. in the 23d of Elizabeth about A. D. $780,
Shc though it then ancient dogma of law.
The fundamental question for to decide is first, whether
this rule in force this kingdom and secondly whether
shall adopt the law of this and of this kingdom
We obliged to that it is not by virtue of its being
part OF the law the law in this kingdom. This
Court has held repeated occasions that the law
not in force in this kingdom As said by Mr. Justice
cCuly in the King Robertson, Haw 1876 this is not
English colony which brought out the law of England to
be force here except modified by express statute As
early 1852 Judge Robertson said in speaking of the
law of England by which widow is not dowable in
easehod estates :" but this doctrine of the law
has not been adopted in this kingdom In the matter of