The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-12-26

restricted death the lifetime,
consequently that the defendant did take ndefeabe
fee merely because she survived the testao and that the
devise intended to bee merely by of substitution
We may add here that the article against
willing does imply power convey. This clause
evidently intended partial restraint upon alienation
inconsistent with the devise of the fee in which case it would
be void but explanatory of the clause with which it
coupled namely the clause creating the devise The
clauses be read together and expressing together the
intention that upon the death of the first devee without
child her estate should determine and the fee should then go
to her brother and sisters Also the word descend W in the
devise used in the of descend by law but
IN the of pass go by will
Having decided that the defendant did not
indefeasbe fee simple merely because she survived the
taOr, the question is whether the 18th article left the
devise defeabe fee simple with executoy devise over,
cut down the fee simple estate TAIL with remainder
The solution of this question depends part upon
whether the words without child" definite failure
OF ISSUE that failure of the devsee issue during her
lifetime her death, indefinite failure of ISSUE that
failure extencon of her that is nea descendants
me whether during her life at her death time at
forwards The of the law upon this subject very much
the subject of indefinite devise above considered
The words may an indefinite
failure of issue In like the present they would naturally
be taken definite failure for the popular idea
tanly that the words without issue" in the phrase die
without issue" refer the time of death For how could
living die without issue say thousand years from
now! 1t strained construction hold that the words IF
die without ISSUE eff die time and his issue
become extinct long afterwards Nevertheless
law, only the word child presumed be Synonymous
with issue but the words de without ISSUE presumed
refer indefinite failure of This presumption,
like the presumption of life the of indefinite
devise under conditions that longer exist and
arbitrary and defeated the real intention Of the
testaOr 1t has been altered comply with the esators
real intention by statute in England and of the United
States, and by judicial decision number of other States
But law the held that the presumption
might easily be by other expressions the WILL and
find enough in the will before such presump
tion if made 1t might be easily in the
of children than in the of 'ue, and in the of
"a chd than the of children The against
the devsee willing the property away OF her death
without issue coupled is with the devise in such
A. A. oil
at her DEATH for this the restraining clause refers to her
personal act namely, her willing awayan that could be
performed at ALL only in her lifetime and that could become
effective, if all, only her death The words "ke
kauoha aku Oa that is, eff she ois away We may add
that this the simple of "a devise to and her heirs
but dies without ISSUE then over in which the word
may heirs general "heirs of the BODY
and is held to have been used in the latter by implication
from the subsequent reference to sue thus to
TAIL but it is the of indefinite devise shown
by other parts of the will have been intended fee simple
with the power of alienation and other incidents Of fee simple
except of death without issue. The clause against
willing while does not imply power to convey IN OF
death without ISSUE does imply both convey and
power WILL incidents of fee simple of death
with Since, therefore, the Will whole shows an
intention confer fee simple and the particular language
article shows that the words without chd in that
article were intended definite failure of ISSUE
hold that that article does down fee tail the fee
simple devised in the 3rd article in other words that the
gave defendant fee simple deeasbe upon her death
without and eXecuory devise that event to her
brother and sisters.
The question remains the facts of this
case simple still deeasble did become ndefea
be by the birth of child Notwithstanding the fact that the
child died in the devsees lifetime? The solution Of this ques
depends upon whether the words without child"
without child then living surviving "wthout child
born that without having had child" The words
capable of either of these meanings At first thought they
might perhaps naturally be taken in the first
descriptive of the of the devsee the particular time
DEATH with which they associated And
yet they might very naturally be aken in the of
chdless as descriptive of her in general way
belonging that class of persons who have had chdren
just the word unmarried is held to naturally refer
to spnsters widows There several considerations
which favor this construction In the first place, the
ucton favored that would shorten the period dur
which the property would be tied If the estate should
not become ndefeasibe notwithstanding the birth of child
until of the devisee would be the if the words
question without child then living, the property
would up during the whole of the devsee life Again.
since have found the teators intention, in the