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

In
without child that is cOnended without ISSUE because
these words imply that the child issue, any, should
the remainder and the rule in Sheey Case ites the life
and the tail the
that the rule in Sheleys Case here ThStOn
Allen Haw 1929 the separate, that life
tate in the first remainder in fee in the child or issue
and that if he contends, the without child
indefinite failure extinction of issue any time, however
the devise executory devise void for
ness; the Ord article confer simple it
down fee TAIL because it implies that the inheritance
intended restricted the body
the entail could be barred by conveyance fee by the
first taker after the birth child because
prohibited by the de donis passed the reign of Ed
ward L. which, it is contended is a part the
in force here.
The defendant that the words die without child
in the Sth article "de without child during the lifetime
of the estato in other words that the devise merely
by of substitution the defendant should die without
child before the esator died and that since she survived
the tesator she took indefeabe
"die without child" Idle any time without child,
to make the estate deeasbe the defendant should
the and afterwards die without child her
became indefeabe upon her surviving and having
child although the child afterwards died in her ifetme if
the fee simple down TAIL by
prior the could be barred
after the birth of by conveyance fee by the first
aker that this be done here if
is considered part of the law, the deed taking the
place of the Anticipated fine recovery Also that
unrestricted implied by the restriction the
power % will
We of the opinion that the devised by the third
paragraph in fee simple 1t is everywhere held
that words OF inheritance will the
fee An indefinite devise, such the question: be
either for life in Fee 1t would naturally be understood
be in fee for according popular the gift thing
carries all the interest in and merely life interest At
law however, such devise presumed to be for
life, but this presumption up under conditions longer
existing and has been generally recognized technical and
subversve of the actual intention of the eator in most
1t has, accordingly, been abogaed by England and
of the United States where the presumption
favor Fee Even law always quick
seize upon other will to the pre-
sumption and carry the real intention of the We
find ample the will before ebut such presumption, if
in the absence of intention shown the contrary and that
the word property equivalent to estate In the present
case, the begins My property kuu wawa shall
be divided among heirs follows and in the 9th article
speaks having divided aU the property wawa pau
among heirs and in the 10th article a other property of
(na waiwai o'u If any shall be divided equally
among my heirs and wife" In KGhandk KOhal0 Sugar
Co.. 6 Haw 694, similar words Qkou waiwa) were held
carry fee simple The word translated heirs (hooilna
all through WILL though strictly synonymous
English word hers' would also Indicate
though slightly that more than life intended The
words oter property dny in the 10th article and the fact
that in this article the residue if any, the per-
whom the specific deve made also show intention
that the specific deves should carry the whole estate the
lands devised The tator would hardly have made specific
deves for life and then devise the remainder If any, part
of the residue, any, the Again. the 0th
article the exception OF the wife implies that she had been gwen
the Fee that is that restriction intended be laid
her power of alienation and therefore, since the specific devies
to the children were made in language to that
part WILL that the children also had been given
the fee and that they might freely dispose of it far
as restricted by this article.
Having that the Bird article intended carry
fee simple, the question is how is this affected by the
Sth And first do the words Idle without chld
die without child during the testator hfetme as to give
indefeasbe fee simple the devisee she should
survive the testato with devise only by of sub
she should die without child in the lifetime
of the esator! In opinion the eatOr meant die at
me,' within his lifetime. This is the natural meaning
of the words m of heirs shall die without other words
limiting the death particular period 1t is true that at
law words simply m of my heirs shall die
and the words without cld added the word die
of any other words indicating different
intention construed e within the testator life
time would be only in order avoid mpung to the
the absdy of making the devise contingent
that to happen since Is sure to die
later but not die within the testators
But where the contingency of death coupled with
another contingency without child there necessity
restricting the natural meaning of the words for death
without child happen whether In the lifetime