1 Haw. 63 (Haw.Super. 1852), In re Vida

Citation:1 Haw. 63
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:IN THE MATTER OF THE PETITION OF CARMEN ESCANILLA DE RODRIGUEZ VIDA, FOR THE ASSIGNMENT OF DOWER IN THE ESTATE OF F. R. VIDA, DECEASED.
Attorney:Mr. Montgomery and Mr. Bates for petitioner. Mr. Harris contra.
Case Date:April 03, 1852
Court:Superior Court of Hawai'i
 
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Page 63

1 Haw. 63 (Haw.Super. 1852)

IN THE MATTER OF THE PETITION OF CARMEN ESCANILLA DE RODRIGUEZ VIDA, FOR THE ASSIGNMENT OF DOWER IN THE ESTATE OF F. R. VIDA, DECEASED.

Superior Court of Hawai'i.

April 3, 1852

         Syllabus by the Court

          Held, that the widow was entitled to dower in a lease-hold estate, two hundred and seventy-seven years of the term remaining unexpired.

         Mr. Montgomery and Mr. Bates for petitioner.

         Mr. Harris contra.

         LEE, CHIEF JUSTICE

         This is a petition for an assignment of dower in the estate of F. R. Vida, deceased, under the following facts:

         The deceased came to his death in September last, leaving a valuable leasehold estate in Honolulu, for the term of two hundred and ninety-nine years, two hundred and seventy-seven of which remain unexpired. In this estate the petitioner, widow of the deceased, claims her dower; and it being encumbered by several mortgages, to which the widow is not a party, the mortgagees step forward and deny the right of her claim, on the ground that the estate being nothing more than a leasehold, is but a chattel real, and consequently belongs to the personalty, in which she is entitled to no dower until after payment of the debts.

         The statute governing this case reads as follows: " The wife shall in virtue of her marriage, be entitled in law to receive upon the death of her husband, by way of dower, a life estate in one-third part of all immoveable and fixed property owned by him at the time of her intermarriage, or acquired by him during her marriage; and an absolute property in the one-third part of all his moveable effects in possession, or reducible to possession at the time of his death, after the payment of all his just debts."

         Now the question arises as to what is the proper construction to be given to the phrase " immoveable and fixed property, " -the one side arguing that it includes leasehold estates for a term of years, while the other contends that it only covers lands held in fee simple, or by other freehold tenure. By the common law of England, a widow is not dowable in leasehold estates for terms of years, for they are considered as chattels belonging to the personal assets; but this doctrine of the common law has not been adopted in this Kingdom, and consequently cannot be used as a guide in arriving at the proper construction to be given...

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