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

Z Secondly the word "or Counsel for the Bishop Estate
and Queens Hospital contend that this word should be
changed If should be changed the devise to
could take effect unless both events happened
that is death of Emma O before the esator and O with
out leaving any ISSUE which case the Queen did not die
before the sator devise could take effect
whether WHILE if such change should
be made the would take effect upon the happening
of either event. which since Emma died without leaving
any ISSUE the devise would take effect whether she died
before the not The ground upon which the change
urged necessary order carry the intention
the eaor for if the change made and Emma had
died before the and had left ISSUE such could
take but the would Colonel Rookie although
Gas contended the evidently intended that the issue
should take if there any ake and, that although
matter of fact Emma did die before the testato
she have died before him, and in constituting the will
put ourselves in the position of the the time he
made and not consrue differently according the
which events happened to take afterwards
This question of the construction of ambiguous
word for the meaning of the word or is perfectly
is question of striking word and substituting another
in its place This permissible where clear from the whole
will that the testator intended the proposed substitute but
serted the wrong word by mistake If o changed
here will not be because the language of the the will
shows that the eaor intended and but rather
would be considered reasonable in him have used
word and therefore would be coneced that he intended
it. "Or often has been has been
read or upon such and exception rule
that the language of will be changed merely upon
ectured intentions conended that this exceptional ruling
in regard the word has established by several
centuries of pecedents in England and that should therefore
be adhered to True has been applied lust
like the present. but contended that the for the rule
requires for the sake of consistency its application this
The leading Fairfield Morgan, B. & P N. R. So
The rule Is stated thus: off real be devised in
fee slmre with limitation the of A. dying under
twenty without ISSUE the word or will be read and
the gift will be construed take only the event of
A dying under and without ISSUE Hawkins Wills
2O3 Various considerations led the adoption of this rule
One that the words or' and and nfreuuenty
used in parance without due regard their respe
tive meanings Hence the courts ready change
these words than change other words Them again. the
found easier to make the change the first place
two events death under age wenyone and without ISSUE
for in such there would be for ppong that
the testato intended that the gift should take effect only
the first taker should die young DISPOSE of the
property by deed will and when he left nea descendant
to inherit from him, but that if he should arrive at the age
OF majority he should have the power of disposition and
that should be left to him to make what disposition he chose
Ills ISSUE Inns reason OF course would not apply the present
case where the first event DEATH not under but before
the testao But the principal object of the rule is to prevent
disnherng issue For is assumed the testator by max
ing the devise upon the death the first aker without
issue one of the two events intended benefit to the isse
II there issue, and unless were read Sand the ;ssue
would take nothing the aker should die under aoe and
leave issue ls may be regarded the principle upon which
the rule rests and hence suggested q Jam Wills 9th Ed
43 that be extended to every where the gift over is
to arise in the event of the preceding egae diving
under prescribed conditions leaving an object who woud
or at least who might take dervatvelv roupb the
devsee egatee if his interest remained undiyesed and 70
therefor ( is ollo Tho
beneh not dependent upon the of the devse
or gatee dying under the prescribed circumstances or not
And the rule has been applied number of cases where the
events described other than under age and without
issue, as where the second without leaving anv bus
band or where the first death under some other age
as twenty-five, n the lifetime some other person
Should the rule be applied in TIE present case?