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

third party, it might have occurred after the d.,a
testator in which case the estator could not have
will to suit the event. But in the present case g
died before him leaving issue, he could have chanosl
90 TO give the estate to the issue The mprobab;t WIS
currence of the events above mentioned and the pro
he intended to give Emma estate tail and not mol,
devise to the issue, support this ground Lastly hi, a.
was drawn to the will after the birth of Emma' ir
time when that birth must have been prominently h..
mind namely only nine days after the Prince was h.
the testator made codicil to his WILL and vet be maa
ton in the will except to change of the executors
not alter the will to make direct devise to H. n
nor did he change cor" to ''and' on the clanca a.
might die before him leaving issue nor did he stl
devise over to the nephew although, if and" were ~
devise could never take effect Apparently he INTENDED
Emma should die at any time without leaving issue H.
should go to his nephew. Counsel seemed to assume IN
ment that the codic was invalid We do not deem It na
to express opinion upon the question of its VALIDITY
validity Independently of the argument based on the
in so far it may its validity the conclusion m
reached would remain unaltered.
The cases mainly relied for changing "or" IA ap
this case are DEM Kemys, East 366 1SOS) and IT,
a. Kemp, 8 T. R. 40 (17S9). In the first mentioned ~ l.
the DEVISE after prior life estate A. was to B. in M
B. die before a. if she die without heirs of her IaI
This case is distinguishable from the one at bar in that
prior devise is in fee and not, assumed in the present
ment for life with remainder the issue and M the
is death in the lifetime of third party not as here in III
time of the testator. In the second case there was sn
inter riuos mot devse) to the use of the surrendprr
for life, then to his wife during wdowhood then TO his
life, then his sons issue, but in his son should die
fla, III
heirs of the surrenderer forever 1t will be noticed that then
devise for life only and the first event was death in the
time of the surrenderer himself The attention of the court
not to have been directed to the distinction between the w
feestate and that of fee simple with reference the ami
ton of this rule, but directed particularly to the
ton whether the rule applied well in surrender of c
premises will and whether the sons remainder was
not If the is distngushable from the present
is also not dstinguishable from the case of Cooke
house, supra, decided seventyve years later in which the
decided otherwise although Wright T. Kemp was called
attention, and ought far authority is cs
to follow the later rather than the earlier case But Their
important points of difference between Wright T. Hemp M
present case For instance in that it held that The
took vested estate in the surrenderers lifetime this En-
could not take any estate in the tesators lifetime that
surrenderer could not have changed the conveyance
events should not turn out he contemplated this the
could change his will if Emma should die before him a
issue
thus, In any view, whether Queen Emma took etaa
fee simple conditional, fee simple, lifeestate with
remainder in the Prince feestate with alternate
remalnders in the Prince and Colonel Rookie the latter
her death without leaving any issue surviving her. BED
entitled (by way of executory devise or remainder The
might be) to the lands in question in fee simple pOn
The exceptions to the order of the Circuit Judge oTaT
the demurrer in the first and sustaining the demu1eE
second OF these overrued and the rem
to the Circuit Court for such further proceedings n
proper in conformity with the foregoing views,
Magoon d Silliman and /. H. Long for c. X. c. RcS'
A. s. Hdartaoell, Robertson &c Wilder ". r. Castle 3D.
H. Wearer for The Queens Hospital.
Kinney, Ballou & McClanahan and II. Holmes 10
Trustees under the Will of Bernice P Bishop.