The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-05-19

an estate tail at common law without setting forth
but in view of the important place this 'f
the argument of counsel and the light that J, V'9
may throw upon other questions involved wo ~@
set forth our reasons.
2. The next question is, would Queen Emm.
tail under Hawaiian law, if estates tail conH o..
waan law!
1t is contended the one hand that she cou,5 :,
tail, if at all, only by the rule in Shelly's Case and
that rule does not obtain here (Thmston T. Allen en-
she could not take such estate, and on the ol..1
the ruling of the court in Thurston T. Allen 70
the rule in SheIleys Case is not law here. w..
dictam and that that rule should now be held =,
here. In opinion that ruling was not obter on1
ought not to be reversed in favor of rule which i
versye of the testator's intention Therefore e a..
could take estate TAIL if at ALL only by virtue q
Sheleys Case, she could not take such an estate
But it is not entirely clear that she would t orr-
on the rule in Sheltey's Case There is room f., ~.
that she expressly given estate tail If tbo
to emma in fee tall" the rule in SheIIeus Case m w.
no application. If there an express devise to he.
life only and direct devise after her death 70 1o =,
in the sense of the heirs of her body" she would taxa
TAIL if at all, only by the application of the rule IN N1
Case But if the devise simply to her and bp,Aa
in the sense of 'the heirs of her body" the rule IN ga
Case would have application except in an historical m
practically obsolete sense. That rule of course docs
termine the in which the word children i nd
applies if at all, only after the meaning of that word
determined. If, then children is used here the OK
'heirs of the BODY and the words ITO be used and %
her during the term of her natural fe and her cb1
ever" merely the testators method of describing b
devised to Emma that the devise is equivalent to M
Emma, to be enjoyed by her during her life and by the h
her body for ever" that is to Emma and the hens
body" she would take estate tail irrespective of the
Shelleys Case far that rule has any real force
present time Certainly the decision in Thwson T. Allen
have no bearing upon such Whether the Language
Will should be construed creating estate tail aside
the application of the rule in ShelIeys Case in view
meaning and weight that would in these islands at the nd
time be placed upon such expressions as during her nt
and without leaving any ISSUE, it will perhaps
purpose to consider That question of such mature Ii
would be unsatisfactory to make its solution mpr
IN our chain OF reasoning Moreover if it should be i
in the affirmative, it would still be necessary to consider
estates tail may exist here, and if it should be decided
negative it would be necessary to consider the same o
tons that would have to be considered in case should
at estates tail cannot exist here For these reasons an
CT our opinion upon the question whether estates tail may
here, deem it best to proceed at once to the cons
this question
we have no hesitation in holding that estates tail T
place under the laws of Hawaii It true as contenda
ancient Hawaiian land tenures bore striking resembles
those which prevailed in Europe in feuda times nl
tem not the feuda system of early English history grew
these islands. Estates tail were never part of that
Even IN England they of statutory origin Nor
English system imported into these islands On the
'rary the movement was in the opposite direction as
among other things, by the establishment of the Land
sion IN 1916 for the purpose of awarding titles in fee
and abolishing what then remained of the Hawaiian pa
~ Estates tail are repugnant to the policy OF the tree
uon OF property and have generally been considered out
IN the United States and have been abolished bv statute
recognized by the in most of the States and c
settlers from New England here one remove further m
England would not have been likely to introduce sn
even II they had brought with them the main body OF m
ana customs and established colony of their own Ir
becoming themselves practically incorporated in the h'
nation and merely exercising an influence, important b
was upon Hawaiian legislation customs and ideas Ac
Of H.. -ta1lGr