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

what similar been held take estate tail where the
word son used instead of children IN view OF the entire
and perhaps partly upon the principle Stated in Ja
on Wills 9th Ed 1922 that argument in favor of applying
to the objects prior express devise words denong failure
of ISSUE gains proportion such prior devise
is more comprehensive in its range of Objects but is
contended that the rule is otherwise the of
devise children according the rule Stated H. 449
Ntha the words default Of issue expressions OF similar
import following devise children in fcesimpe in
default children and following devise to children in tall
mean default Of children of issue Unbeatable under the
entail This free from all doubt AS illustrations OF the
concession tissue construed merely refeentialy
where the preceding devise on, counsel cite Robinson
o. Robinson Yes ST. 225, where the devise H. for
his life and no longer and after his decease
to such son as ne should have and Tor default
of such issue over and Leuis Purley, 16 NJ. & W. 1885,
where the devise j. or life and his eldest legitimate
after his death and default of such ISSUE give in like
Richard and he has legitimate issue
male over; also Mesh Melsh, B. c. $40. To illus
the contention for the Preferential construction where
the devise is "chdren' counsel cite Goodnight Durham,
Doug 1884, where the devise A. or le and after his
DEATH every children equally and their heirs
he dies without ssue over also Malcolm Taylor
R. Ny. 416. The in this argument that it
that there is in the present express devise the children
which of the things to be proved In the of
the first class cited estate tail held in spite of the fact that
there devise the In the of the second
class the ruling against estate tail because there
express devise to the children In the present
clear how the the children take In Goodnight
Dunham for instance only the devise A. for his
life only but the devise his children express and direct
"to" 'after his death and the children with
word of DIVISION equally" and with the additional word
her denong fee simple In such case of the sub
equen of the word tissue could alter the plain
ing of the word children" In Robinson o. Robinson not
only the devise to H. for his life only but if to
emphasize this the words and longer added and then
the devise to the direct to- and expressly after
his deceae and the Preferential word such actually
serted before issue and in spite of all this the Preferential
construction adopted and H. held take
tail In the present both o and aer her decease" are
omitted And have by the decision and the first
resolution in fs Case the presence of the words aer
decease deemed sufficient negative the idea
tall whether there children the not
but by the rule in that where such words absent
although the word to present. the existence or nonex
of children at the time of the devise determined whether
the children should take with their parents jointly the parents
take estate tail That the children would remainder
was considered out of the question.
The absence of such words ate her decease following
the devise Emma and preceding that her children is the
more significant here from the fact that the already
used similar words separate the devise to Emma from that
10 his wife, namely the words and from and Immediately after
her decease Against this it is argued that such words were
necessary between the devises of the aes Ito Grace and
Emma IN order to show that they be enoyed Jointly
and to show IN which order they be enoved but that
they were not between the devise Of the (o
eeSate to Emma and the (assumed) fee children be-
cause the Interstate would of necessity come before tbe foo
~ may weaken the argument far is based on the fact
a the testator employed relied different methods of
SEPARATING Tie TWO estates IN the two instances but does not
wholly destroy it and does the argument 60 far &c
Is based on the absence of words before the words ~
children AS the devise the children stands it Immediate
10 take effect upon the death of the esator but since there
were no children at the time of the devise could not have b
intended as direct devise for if was the children if horn ~
e death OF the tesaor could take at all-vh;cb ll
ho' the intention Such words latter her ecease arc natural
anu usual where remainder is intended and great weight is
tu upon their presence to show that the words follow