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

conditional Zone the other of which, it commended tba
stator intended to give for upon the birth issue the tenant
could by conveyance fee simple conditional into foo
simple and off both the heir and the possibility of reyerer
and before the birth of issue could by common recovery
convert fee tail into fee simple and both the heir and
the remandernan and consequently the tetato pre
sumab intended that the first aker Should have this power Of
alienation, his intention would be nearly out by
giving Emma fee simple that the form gift favors the
theory of fee simple for the gift directly to Emma onv
the children being mentioned only the limitation of the gift
to herr that the gift being Immediate the children unless their
mother took the fee that they could take by from
her. would not be able take all they should not be
m esse at the death of the esaor that words "de without
leaving issue if they import indefinite failure of ISSUE
favor this construction that the policy of law against the
psponemen of the of alienation and if Emma only
lestate the property would be tied until child
should be born and perhaps until the termination of life
estate and that 1t better to hold in all wthou attempting
to most nearly the intention of the testato what
would be estate tail law would simple here
IN order that there be greater certainty titles On the
other hand contended that regard should nen
ton OF the tesaor far possible and that would
nearly carry out such intention in this give Emma life
estate only with remainder her children because the words
ito be used and enjoyed by her during the of her
life show that she intended to hold for life only and was
intended that her children should take which they could not
do Emma would take, if at ALL fee simple but should die be-
fore the testato the children should die before
she survived the eator and that intended that of her
heirs her children only should take, if she took
fee simple her heirs general would take; the words
die without leaving any ISSUE, if they import definite failure
OF ISSUE support this construction Probably first of these
lines of argument would appeal strongly the English
mind the second to the American mind Which sus
tanned would be of consequence The Queens Hospital and the
Bishop Estate only the former contenng for fee simple
Emma, the latter for Interstate with remainder and though
counsel for Colonel Rookie join forces with the Bishop
IN favor OF feestate with remainder mmatera him
which view is taken, the sequel will show In either case
whether he would take would depend upon the
ton of the subsequent words or "de without leaving any
issue. We shall therefore proceed consider question
Of the construction of these words
g. First the words decease without leaving any ISSUE The
argument upon these words that or be in
its natural The ussion whether these words are
be taken in their natural meaning decease without
leaving any issue surviving herr of the following
fetal O deccase without having had any ISSUE 2)
"deceae and her issue become extinct at any time"
Counsel for the Bishop Estate contend for the first of these
artificial constructions. The argument applies only
Emma would take Interstate and the children vested
mainder that vested the death of the if they
then IN at their birth they should be born after
wards The argument is that the expressions de without ISSUE
and 'die without having issue" have have in law the
meaning of 'die without having had issue and that the
preston de without leaving ISSUE has received the
srucon the object of such construction being prevent the
divestng of vested In this if the children would
take vested remainder and the gift Colonel Rookie
would take effect only Emma should die without having
had ISSUE them she did have ISSUE the gift could
take effect but upon the death of the Prince his
would by descent his parents The chiefly relied
Trehdrne Layton, L. r. 10 O. B. 49, in which the devise
NJ H. for life and her death her children
NJ H. dies leaving no ISSUE The words leaving
ISSUE held authority rather than reason
"havng had issue. To so hold would be- remarked by
court, like holding that who died penniless, died
leaving fortune if he had had
brief period though he had lost years before his death Such
construction may have caeout the intention of the
majority of under the circumstances under which
originated and may carry it in cases, but