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

he
er would take nothing which, is supposed could not have
oeen the intention of the the testaor shows an
intention that the gift shall take effect in some event not
"hstandng the birth of child foundation of the rule is
In the the expressed an intention
at the git over should take effect Emma die
before the sator though she should ISSUE as well
as IN ease she should die any time without leaving issue
consequently there be presumption that that
the children should take ndefeabe estate in all events if
ee should be any children This supported by In re
ball. R. SO CHI Div sos; 40 h. H. where the words were
die without leaving MALE These words were construed
IN thelr natural sense because the manifested an nen
ton that the gift should take effect even though tho first
taker should leave issue unless the issue were male
The other question upon the construction of these words is
whether they should be read in their as meaning
decease without leaving issue her DEATH their
artificial of decease issue become extinct at
time that is whether they import definite or an indefinite
failure of issue Emma may be held already stated to take
~ fee simple (2) feesae with remainder in her child
ren which remainder be ) vested children on the
estator death of their ) contingent upon their
surviving her.
If the children took contingent remainder Colonel Rookie
would take alternate contingent remainder It obvious that
If such the the words question must necessarily
import definite failure of issue
If the Queen took the fee if the children vested
mainder in Fee Colonel take at all by way of
executoy DEVISE because remainder be
SIMPLE In such if the words in question import in
definite failure of ISSUE the gift would for remote
while if they import definite failure it would be good
The words con failure of ISSUE were held to import an in
definite failure without doing violence natural meaning
although sometimes doing violence the intention of he>
esator The words without were construed the same
way, with sometimes the absurd that they were made to
their direct opposite with issue' words she
should
decease hout issue or and such issue should be-
extinct afterwards) STILL these words somewhat
ambiguous and such sometimes the esatos meaning The
same construction was still absurdy put upon the words
without leaving ISSUE, when applied to real estate More
absurdy still these words without leaving issue received one
construction when applied real and another when
applied to personal estate when used in the present
but and the sentence with reference to both
real and personal estate mentioned together constituting
residue The presumption that these import an indefinite
failure OF issue under conditions that longer
at time when xecutor deves permitted at all It
generally conceded that the without leaving ISSUE
naturally without leaving issue surviving and that to
hold that they import indefinite failure of most
instances be IN violation of the manifest intention of the
Accordingly the rule supporting such construction has been
abolished by England in some of the United States
In other States is either courts or regarded as
having little force be by very slight express
sons pointing IN the other direction In ThurstOn Allen,
supra the court substantially held that the law rules
for the construction of wills should followed here where
follow them would result in overriding manifest intention
of the esator We bound by to hold
that the words IN question import definite failure issue in
order to give effect to the manifest intention testaor
l conclusion supported and perhaps would be required in
the absence OF the decision in Thuon 4Hen by ruling
that estates tail exist in these islands at common
law in the case of personal property there could be
tail with remainder and of execuory beuue
after indefinite failure of issue would be void for remote
and therefore, in order give effect intention of the
testato by of execuo bques the words decease with
leaving issue" had be their natural sense
importing definite failure of ISSUE but in the case of real
property if such words import an indefinite
failure of ISSUE the devise would be good remainder
after estate tathe prior estate not an express estate
TAIL being enlarged reduced estate tail by implication