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


IA id.
We and predecessors this bench have felt free to
examine into the reasoning of every principle of the
law it has been presented to for adoption from time
time We much impressed with the statement made at
that of the hundred reported Of this Court i'll only
about nine per cent has this Court departed
from the law the point under consideration.
When have followed and adopted the common law we
have felt that its reasoning sound and just and its pr
cples adapted to circumstances When have felt
otherwise have not hesated to reject it, And although
it be asserted with considerable In view
Of the past history of this Court that when question
to the courts of this kingdom, will probably follow
the presidents and principles laid down by the courts OF
those countries where the law prevails net
bound to follow them They not absolutely authoritative
and until farther restrained by statute shall continue to
rejoice in freedom 1t urged upon that should
adopt the rule i'll Shellvs case because number OIL
titles had been passed and vested in this country under
peci legal advice according to this rule We not
udcally that this is the fact and isolated instances of hard
ship where the rule has been followed would not compel
adopt it if in judgment it's general effect would be
pernieious
Having declared that this Court free to adopt the rule
in Shelly to reject it, discuss the consider
ations which should control judgment In the first place
if the theory which gave it birth in order that the lord
might not be deprived of his warlshp by allowing the el
to take purchaser instead Of by descent e Wash r.
269 whether because of the aversion of the law
to inheritance being in allegiance, that these
reasons inappicabe to circumstances. There is
more force the argument that it should be adopted be
it ayors the free alienation of land But it became
law England when the right OF alienation OF land
favored by the lords of the landed estates
If it is such wholesome rule and important csab
s in this kingdom why have twentythree states O
the American Union where part of their fundamental
law from it's colonial period adopted by it's early statutes
constitutions repealed it either wholly to wills
we confess that the abolition Of this rule by the majority
states whose circumstances not unlike has great
weight with And the considerations which have led those
states to take this position after another after having
watched It's operation and being convinced of it's nwisdom
are powerful
The most cogent advanced against the adoption
the rule that defeats the intention of the testator il
many That it would defeat the intention of James
Robinson expressed by his will is clear He has expressly
made known by his will that his wish that his
Should enjoy the OF his landed property only during THEN
lives AID that after their death should go their heirs
He had for this sufficiently strong in his mind
H ed to Keep this property intact during the lifetime
his sons or until we should die That this wish has been
accomplished by of the "f 'aE 5ns question ~
raised until the death of of them has " as i'll
argument
The application OF the rule in Shellys to this will
would undoubtedly defeat the tesatos intention Ch Kent
says that though this rule has been firmly established
axiom of the English law of real property for 500
is admitted to interfere, in most cases. with the presumed
and many others with the declared intention of the parties
to the instrument to which is applied Kent Com 216
p Note to 332 of Jarman Wills by Bgeow, says
that the tendency the American such states where
the rule in Shes is in force is strongly in the drec
ton of giving effect to the intention of the testator when
there is indication however Indirect of knowledge OF
the existence of the rule and of purpose escape its
sequences provided the language of the will is sufficient fol
that purpose" Citing Lyte Beveredge, IS N. Y 600
Huber's Appeal, so Penn. st. 34S, &c,
Chancellor Kent says in Kents Com 534 p OfHt
Construction of Ws The intention of the testator the
first and great object of inquiry and this object technical
rules are, certain extent made subservient The nen
ton of the tesator be collected from the whole WILL
govern provided it be not unlawful inconsistent with the
rules of law In the construction of devises the intention
of the testaor is admitted be the pole by which the
courts must steer, id 537 p.
And find that it the intention of the estator in
paragraphs and of his will that his sons Mark and John
should have only life interests in the land.
The plaintiffs counsel claim that the Court has recognized
the existence of the rule in Sheys decision report
ed in Haw. 662 ChWmgwmth q. Lindsey This decision
by the late Justice Preston and did not to the full
Court But here the Judge held that the facts took the
out of the rule and he did not discuss the question whether
the rule existence not for unnecessary to do
fOIi not the before the Court