Auld v. Andrade

• Decision Date: 11 May 1929
• Docket Number: 1828.
• Citation: 31 Haw. 1
• Parties: LILLIAN H. AULD v. FRANK ANDRADE, ET AL.
• Court: Hawaii Supreme Court

31 Haw. 1

LILLIAN H. AULD v. FRANK ANDRADE, ET AL.

No. 1828.

Supreme Court of Territory of Hawai'i.

May 11, 1929

Argued April 29, 1929.

EXCRETIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. A. M CRISTY, JUDGE.

Syllabus by the Court

When under the provisions of a will a gift to a class is postponed, either to a particular time or pending the termination of a preceding estate, as a rule those members of the class, and those only, take who are in existence at the arrival of the time for distribution, as at the death of the life tenant, unless the particular language used confines the gift to those in existence at the testator's death or who are in existence at the date of the will.

When a testator devises his property to a niece, " to her and to her children born of her body; but if she should die without giving birth to a child or children, then" the property " shall descend to A and to her own children and to their heirs and assigns, " the devise to the " children" of A is a devise to a class and the members of the class are to be ascertained as of the date of the death of the niece without having had issue.

The provision just recited is construed as a devise, upon the happening of the contingency named, to A for her life and after her death in fee to those of her children who were surviving at the date of the death of the niece.

S B. Kemp (Huber, Kemp & Stainback on the briefs) for plaintiff.

Marguerite K. Ashford (Thompson, Cathcart, Beebe & Winn with her on the briefs) for Frank Andrade and twelve other defendants.

N. D. Godbold (Heen & Godbold on the briefs) for Elizabeth Akana and forty other defendants.

J. G. Anthony (Smith, Wild & Hoppe with him on the briefs) for defendants Gilliland and Fujimoto.

PERRY C. J., BANKS, J., AND CIRCUIT JUDGE STEADMAN IN PLACE OF PARSONS, J., ABSENT.

OPINION

PERRY, C. J.

This is a statutory action to quiet title to a piece of land. The only question brought to this court for determination is that of the construction of the will of one Peter Porter Kauhema, who at one time was owner of the land. Kauhema died on May 22, 1871. Two days before his death he executed a will in which he recited that he was suffering from a long illness and that its outcome was uncertain. The will is in Hawaiian. A translation of the material portion contained in the bill of exceptions allowed by the trial judge and acquiesced in as correct by all of the parties concerned is as follows: " I hereby bequeath and give all of my properties, being the land at Kaluaolohe, Waikiki, Honolulu, Oahu, and the land at Kauluwela, Honolulu, Oahu, to my niece, Uwini, (w), by name, who was born of Hannah Hooper Kauhema, my sister, who is living at Lahaina, Maui, to her and to her children born of her body; but if she should die without giving birth to a child or children, then the lands mentioned above shall descend to Uwini Auld, wife of James Auld of Honolulu, and to her own children and to their heirs and assigns." The will further provides that because of his aloha for Uwini Auld the testator appoints her executrix of the will and guardian of the person and property of his niece Uwini and that because of the testator's confidence in Mrs. Auld he wishes that no bond be required of her in the performance of her duties.

Uwini Auld died, intestate, on June 6, 1876. At the time of the death of the testator she had two children living, to-wit: a son, Henry William Auld, and a daughter, Edith W. Auld. In March, 1873, another daughter, Maude A. Auld, was born. This son and these two daughters were the only children ever born of Uwini Auld. Henry Auld died, testate, on May 30, 1890, leaving all of his property to his wife, who is the present plaintiff. Uwini, the niece, died on November 26, 1915, without ever having given birth to a child.

Omitting words not now helpful, the provision under consideration reads as follows: " I hereby * * * give all of my properties * * * to my niece, Uwini, * * * to her and to her children born of her body; but if she should die without giving birth to a child or children, then the lands mentioned above shall descend to Uwini Auld * * * and to her own children and to their heirs and assigns."

All of the parties to this controversy seem to agree that the gift to the niece " to her and to her children born of her body" was an attempt to create an estate tail. In this Territory estates tail are not recognized. Rooke v. Queen's Hospital, 12 Haw. 375; Nahaolelua v. Heen, 20 Haw. 372; Kinney v. Oahu Sugar Co., 23 Haw. 747; Rosenbledt v. Wodehouse, 25 Haw. 561. It has also been held that when an attempt is made to create an estate tail the provision will be construed either as the creation of a fee simple in the first taker or as the gift of a life estate to the first taker and a remainder in fee to the heirs especially designated, whichever appears to more nearly effect the intention of the grantor or testator, and that ordinarily the devise will be held to take effect as a fee simple unless something appears " which should send it the other way." Kinney v. Oahu Sugar Co., supra, and other cases above cited.

It is unnecessary in this instance to decide whether there was in fact an attempt in the words now particularly under consideration to create an estate tail, or to decide whether if that was the attempt, the provision must be construed to result in a devise of a fee simple to the niece or in the devise of a life estate to her and of a remainder in fee to her children, for, whichever one of these is the correct construction or result, the undoubted fact remains that Uwini, the niece, died without ever having had a child or children born of her body. There can be no...