The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-03-25

Circuit Judge entered decree mr., fo0a in favor of the
children alone by widow without prejudice
e rgt OF appeal and the here her appeal
from that decree
The question IS whom the testator intend TO include
under the term heirs shown by the language of his will!
we cannot enter into specuaons what he have
intended fact The question expressed in
tenton' lie might have intended include almost any class
of persons under term heirs and his intention would be
carried out if it expressed with and
not contrary rule of In this conceded
that the persons are to take a. heirs were intended by the
testaor be determined by Hawaiian
Only two statutes rather portions of the Civil Code
called in question One Oh b Comp. p 474 entitled
"Of the Descent of Property both Real Personal Of
which the portions involved in this
Whenever person shall die ntesae within this Kingdom
NOV Repbhc his property both real and personal of every
KIND ana description shall descend TO and be divided his
heirs hereinafter prescribed The property
shall be divided equally among the ineates children.
II the mtestate shall leave ITO issue, his shall
descend onoalf to his widow - 1t is obvious that
tins statute alone relating descent is govern the
widow takes nothing because although she would be an heir if
there were children (9hH,ston Alien Iaw 1922 vet,
there being children, they alone heirs The other
p 429) entitled OF Dover, which reads follows:
Sec 1899 Every woman shall be endowed of one-tbrd
part OF all lands owned by her husband any time during
marriage IN fee simple in freehold, for the fifty
years or more long twenty-five remain
uneHred but IN less estate, unless she lawfully barred
thereof she shall also be entitled by DOVER to an abo
lutte property in the onehrd part all his movable effects
IN possession, reducible possession at the time of his
death after payment of all his just formal claim
is made that entitled TO take under both noron
OF this section but it obvious cannot take as an
heir under the first part of the section which clearly relates to
DOVER that the claim under that portion the section is not
pressed The claim under the latter portion section is
relied on
Two grounds urged in support of the the widow
may take under the latter portion of this section
1t appears from the language of the will that the
ed that the widow should take any and
cannot take under the of descent she
this The portion will relied on to show such an
thus "Shoud however any of the said bene
fciaries die before leaving husband wife children the
left to that beneficiary shall descend to such children
rhplrS3 homo
ment IS that the of the words "uch children other
heirs" shows that the word intended to include
''we mentioned little before words Husband wife
or cden and that therefore the intended under
stood that the wife should take the eirs
since she could take in that capacity under any
ute she must take under the latter part of the section in
ton We that the word "her and
that the intended; but it does in
tended that word to include wife under all circumstances
On the contrary, he expressly directs that property 90
to such children other heirs and that precisely what
should expect HIM If he had mind only the of
descent for that provides that the children wife the
children and wife, shall inherit This portion of the will
supports that estator had in mind only the
statute of descent rather than the view support which
is relied Again, if heirs here includes wife"
husband' also for the words are Ehusband wife or
children, and therefore if upon the death of this
the wife take well the children, then also upon
the death of daughter, leaving husband children
band take well the children for the will
similar provisions for both and daughters and their heirs
respectively, but there under which
can take corresponding to the statute IN question relating to
dover There Is therefore nothing to show that the teat
intended that the word heirs should include those who
take under the of dover On the contrary the follow
ing considerations, in addition those already mentioned
show that he had in mind only the descent CD
almost the identical language of Section 447 above
forth relating to descent namely h heirs divided as
prescribed, this Kingdom person. diving inteae these
words being changed merely IN their order suit the gram
NAUTICAL construction of the sentence (2) He expressly drec+s
that the property shall the heirs which only the
word used in the Of descent, while dower only
in the other but Is the appropriate word
those who take by Inheritance (3 He expressly directs that
the division shall be made in the Of person dying
meate and the statute of descent provides for the division
such specifically while the other shall
provides for division in whether the person dies in
estate not. a Since the two provisions in question
different statutes, of which expressly
descent and the other dowe" and since the shown
subsequent portion of the will in which he speaks of
in Its we'll of the distinction between
descent and DOVER he would in all probability have expressed
himself clearly he had intended the of descent
incln.e nortim of he at