The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-18

Lorrin A. Thurston and Caroline J
Robinson, Executors of the Will
of John n. Robinson, deceased
and Caroline J. Robinson VS..
Mark p. Robinson, Mary E.
Foster, Victoria Ward, Bathsheba
NJ. Allen, and Samuel G. Allen
and w. T.. Foster her husband ;
Annie Jaeger, and Albert Jaeger
her husband; Lucy H. McWayne,
and Albert McWayne her hus-
band; and s. G. Allen and NJ. T
Robinson, Executors of the Win
of James Robinson, deceased.
Before JUDD, CD; MCCULLY, BICK-
ERToN and DOLE, J. ].
Submission of controversy under
Section 1140, Civil Code.
The Testator devised land to his
sons NJ. and j. for the term of their
natural lives, to share and share
alike; and after the decease of NJ.
One-half to his heirs, and after the
decease of J. one-half to his heirs;
Held, NJ. and J. are tenants in COM
mon for life.
By the Rule in Shelly's' case, M.
and J. would have the whole estate
absolutely. But the Rule in Shelly's
case by virtue of it's being a part of
the Common Law of England is not
in force in this Kingdom-the Com
mon Law, as such, not being in force
here:
Though free to adopt the rule, the
Court declines to adopt it as the law of
this Kingdom.
The intention of the testatOr should
in hn Jati nf UrII
The intention of the testator was to
give only q life estate to M. and j.
This would be defeated by the opera
ton of the rule in Shelly's case.
The "heirs' of j. are whoever are
entitled to his property by the statute
of descent, if he had died seized OF this
property and intestate.
J. died leaving a widow but no issue
nor father nor mother: Held, that his
"heirs" are his widow as to one half
and his brother and sisters as to the
other half.
A devise of real and personal prop
erty to executors in trust "the income
from the same to be paid to ]. n. r.
for the term of his natural life and
after his death | give, devise and be-
queath the said one eighth to his
heirs,n creates a valid trust and J. n.
r. has the income for life and at his
death the eighth goes to his statutory
heirs, who in this case are his widow
as to one half, and his brother and
sisters as to the other half.
A widow is an "heir' by our statute
of descent.
~ The opinion of the Court was rend-
cred by Judd, G.. J. 1t is very long
and contains an exhaustive discussion
of the various points of law involved
under the Submission. The leading
question involved was whether the
so-called rule in Shelley's case is
in force in this country, and this
again depended on whether the Eng
lish Common Law is law here or not.
On this very important matter, the
language of the decision is as follows:
We are obliged to answer that it
(the rule in Shelley's case) is not, by
virtue of its being part of the COM
mon law, the law in this kingdom.
This Court has held on repeated occa-
sions that the common law is not in
force in this kingdom. AS was said
bv Mr.. Justice McCully in the
King VS.. Robertson, Haw. 725,
G'this is not an English colony which
brought out the law of England to be
in force here, except as modified by
express statute" AS early as 1852
Judge Robertson said, in speaking of
the common law of England by which
widow is not dOwable in leasehOld
estates; -"but this doctrine of the
common law has not been adopted in
this kingdom In the matter of +.
r. Vida, l Haw. los. The case OF
Kake vs. Horton, Haw. oil QS60),
was an action by widow to recover
damages for the death of her husband
by the wrongful act of defendant.
This Court then said, at is urged by
counsel for defendant that the COM
mon law of England is in force IN this
kingdom and that therefore the action
cannot be maintained in this Court.
In our opinion this argument IS not
sound. We do not regard the common
law of England as being in force here
60 nomine and as n whole. It's prin-
ciples and provisions are in force so
far as they have been expressly or by
necessary implication, Incorporated
into our laws by enactment of the
Legislature, or have been adopted by
the rulings of the courts of record, or
have become part of the common
law of this kingdom by universal
usage, but no farther See also Opin-
ion of Judd G.. J. in re COngdOn,
Haw. 635; also of Hartwell J. in re
Apuna, id. 732, and Ava VS.. Horner,
5 Haw. 543.
The Court is authorizedtO adopt the
reasonings and principles of the COM
mon law so far as the same may be
founded in Justice and not in conflict
with the laws and customs of this
kingdom" (Section S23 of Civil Code
and "resort may be had to the laws
and usages of other countries" (Sec-
ton IA i'd
We, and our predecessors on this
bench, have felt free to examine into
the reasoning of every principle of the
common law as it has been presented
to us for adoption from time to time.
We were much impressed with the
statement made at the argument by
Mr.. Peterson, of counsel for the plain
lifts. that, of the nine hundred re-
norted cases of this Court, IN only
abont nine cases, or one per cent, has
this Court departed from the common
law on the point under consideration;
When we have followed and adopted
the common law we have felt that It's
reasoning was sound and just, and It's
principles adapted to our circumstan-
ces. When we have felt otherwise we
have not hesitated to reject 1t. Ana,
althonOh if NAV now be asserted with