The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-21

ginal statute of descent of 1850, does
not repeal the l449th section. This
act (of 1922 was passed in order to
make clear, what might have been
assumed without any enactment,
that the same rule as to descent of
property from o male would apply
to females, and was enacted in con
sequence of a decision of this court
"In re estate of Napua Zupplein Ka-
luahine," 3 Haw., 1923 QS7D which
seemed to make it doubtful.
The Supreme Court of Massachu-
sets, under q statute like ours (Gen.
Stats. Mass, p. 474), held that where
Mrs. r. died intestate, leaving two
daughters and a husband, and there
after one of the daughters died
under age and unmarried, upon
the death of one under age and I'M
married, the other Inherited her
share" Richardson vs.. Stodder 100,
Mass. 52S See also Sedgwick VS..
Minot, 6 Allen, Ill.
1t is urged against this view that
Section 1449 gives only life estate
to the minor with n reversion in the
sister and that III case the minors
property should be sold by order of
Court the right of the sister to in
herit would be defeated, which it is
claimed would be unjust and absurd.
But this would be equally true if the
mother was the inheriting party.
The estate which Kalanikapu had
was of fee simple. 1t could not be
defeated by any event which could
happen in her, KaIanikapu's, life
time The only effect of the statute is
this, if she should die under age and
unmarried, her sister inherits the
land, if she should live to attain ma
jority and die then her mother would
inherit it, and if married then her
husband and mother would inherit it
equally. The purchaser at the guar
dams sale of the minors land would
get the title quite as clearly whether
the sister or the mother and husband
should turn out to be this persons
heirs.
The defendant claims that the
habendum clause in the partition
deed by which Rosina conveyed to
Kalanikapu the land in question and
cher right, title and interest both at
law and in equity in the same"
estops Rosina from now claiming it.
An examination of the deed re-
flutes this position. This habendum
clause is followed by these words,
'Fthat the said Kalanikapu Moanauli
shall have hold possess and enjoy in
seUeraIty by herself and to her heirs
and assigns for her share all that
property" ETC., describing the prem
ises in question. The object OF
the deed of partition was that each
coparcener might enjoy in severalty
what was Heretofore held in com
mon and the deed contained no
warranty whatever that an after
acquired title not existing at the
time should not be set up, when
acquired. We think it we'll estab-
lished by long series of decisions,
that partition merely sewers the
unity of possession leaving the title
as before. It confers no new title.
Practitioners do not by their deed of
partition acquire new rights, they
merely regulate the method of en-
ioyment of their old rights as
acquired from the title of their an
cestor or grantor. This view will
be borne out by the following auth
critics:
Doe VS., Dixon 5 Ad. & Ellis 834.
Wade VS.. Deray so Cal. 376.
Mcclure vs.. Mcclure Ia Penn.
1874.
Williams Real Prop. p. 81.
l Washburn r. 7. p. 432.
We can see no reason why
grantor of real estate may not there
after inherit the same estate from
his grantee. We therefore override
the exceptions and the Judgment of
the lower court stands.
Thurston & Frear for plaintiff; Q.
Brown and T. NJ. Hatch for defen
dant.
Honolulu, Jan. IL, 1892.