The Hawaiian gazette., 1893-06-06

are desd.
Tho question in difference be-
tween the said Ono luke aud the said
Il, W, Holt, is as follows;
whist Il any estate does the
Said Ono luke take. being y
brother Of said Eliza Vincent Holt
under and by virtue Of the terms and
conditions Of the last will and tests
ment Of the said George Wood. the
ssid Eliza Vincent Holt having made
and executed in her lifetime last
viii aud testament, which has been
duly Sdmitted TO probSte."
II Is unnecessary to set forth the
copies Of the wills above mentioned.
1t seems to us that the will gives
to the daughter the fee in the tesla
tors real estate and the absolute
ownership OF his personal estate.
The words of the win are, II give and
bequeath all nv property to my
daughter and her heirs The pro
vision that the property be held,
managed and controlled by the exc
cutors does not require the executors
to hold the fee or legal title, That
belongs to those persons who might
st any time sell the estate and ter
inmate the trust Per Cur. Pe,tisgig
IS. Boys.ep, 1S9 Mass. 24S.
In the lesdi1g case cited by the
plaintiff. Niusr's AGRr. rs. Pstr6s!d.
So Va, $40 10 Am. ST., 919), there
were no words in the will which gave
more than q life estate to the widow,
snd it was held that devise over of
AL property remaining unused" did
not import absolute ownership in
the widow
So in the ably considered csse Of
Bgrlac6 &c. Clsugi, % n. H, 267, only
q life estate wss expressly given.
In none Of the csses cited by the
plaintiff are there sp, words in the
will giving more than life estate.
T'Argg 60 Spar, g Vt, 266, goes fur
Their than the csses above cited, hut
it was only life estate which was
given in that case.
A devise in fee may be restricted
to life estate, but this can only be
done by language which clearly
means or implies such result There
is no such language in this will
The plaintiff could not have & re-
msinder grated on fee, nor coald
he take fee by way of executory
devise or conditional limitation, for
that is an estate which the first taker
cannot defeat
The executors are not required to
hold the teststor's property for the
purpose of paying other charges. If
the daughter had exercised the power
Of sale which is clearly implied, the
purchaser would have bought subject
to the rights of the annuitants while
they were alive. The agreed facts
stats that the annuitsnts are now
dead There we're and are no acts
required OF the executors in respect |
Of the property except that it "be |
held in trust during the daughters |
lifetime, and managed and con-
trolled by them for her use and |
benefit, they accounting for and pay
ing over to her the income from the
same upon her reasonable request,
and upon her decease in case she has
not during her lifetime disposed of |
the said estate by Will or otherwise
to distribute the said estate and |
any increase thereof among the law
full heirs of my said daughter"
There Is nothing TO De done by the /
executors which requires them to
have the legal estate suy more than
g guardian Is required to have the
legal estate which he holds, manages
and controls for the benefit of his
ward.
In this view 1t Is immaterial
whether the daughter exercised her
power OF appointment in accordance
with common law requirements, the
property having been devised to her
and no restriction being
placed by the viii upon her absolute
ownership
The daughters viii was evidently
not meant to be under a power Of
nor, in order to bar the
plaintiff from taking, need it be under
such power II she was the owner,
she could exercise her rights without
reference to any power of disposal
supposed to be implied by the Ian
guage OF the tsstgtoT
c. ". Ashford for plaintiff Cecil
Brown for defendant
Honolulu, May 80, 1893.