The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-12-21
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
SEPTEMBER TERN, 1896.

SURMTTTED SEPT DECIDED DEC. TO- 1896.
JUDD, CD, FREAR AND WHITING, j.
devise to E. her
e. 81 life E
the shall to such
life with contingent remainder to her
After the esarxs death E. had a
remainder became vested
who by the statute
it's father nd enan
E. die without children
all property shall descend to " N and
E. K younger of E."
Held child of E. and nothing
appears intention of the tesarix was
not all E. that might be born The
such after born children
The Limitation " E. by the birth of
child
perpetuiy E by this will
OPINION OF THE COURT JUDD,
The testatrix NIaIic Kaa died the 18th August 1894
having made will the previous year by which she devised
and bequeathed all her property real and PERSONAL to her
beloved niece, Elizabeth KaalelaukOa Baker, estate
descendibe children and her descendants direct
line Elizabeth to receive $50 during her minority and
attaining majority have all the benefits of the land
during her lifetime but she dispose of of the real
personal property any and she should have child
during her lifetime then all property, real and PERSONAL
shall to such child"
eff Elizabeth should die children descendants
then all my property shall descend Vito n Baker and Eliza
K. Baker the younger sisters of the said Elizabeth Some
specific requests the nomination of follow
Elizabeth married c. w Booth the 31st December 1894,
child born them the 14th October 1895, which
day and deceased On bill for construction OF
WILL Judge Perry of the First Circuit Court
served the following questions of law:
q What legal equitable has Elizabeth H. Booth
nee Baker the property real and PERSONAL devised and
bequeated the will of Mae Kaai, the said Elizabeth
K Booth having attained majority married and had issue OF
the said marriage deceased?
3 What estate legal or equitable vested contingent,
defendants either of them in the said property
under the said circumstances!
Was in Perpetuty created in said real estate by
the will of Kahai and if its effect vest the
estate absolutely in Elizabeth K. Booth?
If Elizabeth K Booth has estate tail IN sand real
property she bar her entail by proper deed made for that
purpose!
the real in child descendants of Elizabeth
Booth until the decease of the said Elizabeth X Booth!
Our construction of the will is as follows:
Bearing mind that the intention of the testariX must
govern (ThntstoV 4. AHcn, Haw. 4O1), find that
life in the real and personal estate created IN
Elizabeth. The language used is inarticia but the expires
sion Elizabeth have al the benefits OF the land dur
ing and dispose of any of the real or
personal estate sufficiently the esatnXs intention
only life in Elizabeth Where would the
property 90 upon the termination of the life eate The will
says if Elizabeth should have child the property real and
nersonaI shall 90 to such child No Elizabeth
i of the death of the testatriX The unborn
child or children of Elizabeth have then contingent remain
der in fee in the Wash. r. P. p al 9th Ed
But contingent remainder became vested IN the
child born The vested remainder here Is
inheritance and the death of the child it passed to It's
by of descent It's father and mother
(the plaintffs) tenants III common
will does limit the remainder to the first born
the second article of the will the limitation to
the defendants the death of the life
tenant without children descendants This contemplates
that be in such children might thereafter
be born o Elizabeth
The birth of Elzabets child defeated
Elizabeth, defendants But there be other
children of Elizabeth. There is nothing in the will
the testax did include all the children
of Elizabeth P1ya, T. r. 4S4, is in point In this
will in effect left the Dorothy for life and then
and heirs forever, with limitations over Dor
oty had child the death of the devOr and her children
were thereafter. Ashhust J., said 1913, wherever
foo cannn