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

"a his
next OF kin under whom they the Trustees claim the remain
ing threeourhs which the Queen being bv her will
Inc Queens Hospital and the Queens Hospital contends that
Emma TOOK the ee which her death by her will went to it.
The Queens Hospital that least conceded bv the TINS
tees of the Bishop Estate, threeourhs the Hospital
lhe language of the will might simple enough to Law
man and reading it. person would read it. in the nat
ura and ordinary of the words employed the plain inen
uon OF the eator would be give feestate 70 his
wife Grace Kamaikui and death Hfeestate TO his
ADOPTED daughter Emma and upon her death leaving
issue surviving her. the fee to his nephew Colonel Rookie What
might nave been the had Emma left surviving her
u' IN view OF the argument and the state of the upon oues
tons OF the kind here involved the cannot be disposed Of
so easily And yet consideration of the intricate anng on
the subject may lead to the same conclusion.
The portion of the will in question NAV be divided for CON
venence into three parts as follows:
gre ana bqea all my real and personal estate Of what
nature or kind wife Grace Kamaku Rookie to be
used and enjoyed by her during the of natural life
ana from and Immediately after her decease, grc de-
r'Se the same to my adopted daughter Emma Rookie
to be used and enjoyed by her during the term Of her natural
life, and her children for ever
o" should the aforesaid Emma Rookie deceae before me-
the said testaor deceae without leaving anv issue then
heby gre and bequea the my nephew and godson
Creswell Charles Keane Rookie, and his heirs for
ever"
1t Is clear that feestae was given to the estator wife Inv
the first of these divisions and that upon ecease soon after
hat OF the testaor Emma surviving became entitled to an
tate Oh some KIND under the second of these divisions The
question IS what Emma and her respectively entitled
to under the second of these divisions and what was Colonel
Rookie entitled under the third of the circumstances of
this that is, the having died first and then Emma Col
one Rookie surviving But in order these questions it
to consider merely circumstances as they
happened but circumstances that might have happened and 70
consue the will placing ourselves in the position the esaor
who presumably intended provide for such contingencies as
might happen but could foesee Just what in particular would
happen
The intention of the tesaor is admitted be the poesar
by which courts must steer. But that may be diff
hcut to ascertain owing the nfecy of language used
or the failure provide for possible contingencies Even
is clear it may contravene fixed rules of law. And even if
il clear taking the language it's natural sense and contra
fixed rules of law still may controlled by rules of
construction In England the country of their ORIGIN rules of
property and of construction such likely be involved
IN cases OF this knd even though they have grown up under
conditions that no longer exist adhered with great rgdv
rules of construction often being given almost xy of rules
of law But the United States tendency is to reject what
considered rules of property Engan of joint with
the times and suffer rules of to Weld readily to
the manifest intention of the testaor BY what rules this
bound in of this kind The Civ L. Sec 1909
provides that The law of England
English and American decisions hereby declared be the
common law of the Hawaiian Islands all cases. except other
wise expressly provided by the Hawaiian laws
fixed by Hawaiian judicial precedent established by Hawaiian
national provided however, that person shall be
ec to criminal proceedings except provided by the Hawaiian
laws" Should this control the construction of will
executed forty years. probaed hrree years. and all rights
under which became vested least years. before
ment! Should the law of England within the meaning
of this statute be taken including early English
What relative weight should be given English and American
decisons How far has it been otherwise provided
tabhed by Hawaiian laws judicial precedent usage
in regard questions which directly the subject
of legislation judicial precedent respect which the
dence national usage mainly negative but where other
integral parts of the system which the rules in question belong
have been expressly by implication abogaed rejected
place of which other inconsistent rules have grown up?
waan legislation judicial decisions and national usage prior
the taking the question un