Carter v. Carter

• Decision Date: 15 March 1897
• Parties: JOSEPH O. CARTER AND GEO. R. CARTER, TRUSTEES UNDER THE WILL OF H. A. P. CARTER, DECEASED, v. MARY S. CARTER AND HER MINOR CHILDREN, HENRY A. P. CARTER AND GRACE S. CARTER, BY THEIR GUARDIAN AD LITEM A. S. HARTWELL.
• Court: Hawaii Supreme Court

10 Haw. 687

JOSEPH O. CARTER AND GEO. R. CARTER, TRUSTEES UNDER THE WILL OF H. A. P. CARTER, DECEASED, v. MARY S. CARTER AND HER MINOR CHILDREN, HENRY A. P. CARTER AND GRACE S. CARTER, BY THEIR GUARDIAN AD LITEM A. S. HARTWELL.

Supreme Court of Republic of Hawai'i.

March 15, 1897

SUBMITTED APRIL 28, 1896.

APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.

Syllabus by the Court

A testator bequeathed the income of one-sixth of certain real and personal property to one of his sons for life, and after his death devised and bequeathed said one-sixth to that son's " heirs to be divided as now prescribed by the laws of this Kingdom (now Republic) in cases of persons dying intestate." Held, that the " heirs" were those who would take under the statute of descent, and that although the wife would be an heir if there were no children yet upon the son's death living children, the wife took nothing.

The testator made similar devises and bequests to his wife and other children also, and their heirs respectively, and provided that " should any of the said beneficiaries die before me leaving husband, wife, or children the share left to that beneficiary shall descend to such children or other heirs as if such beneficiary had survived me." Held that this clause does not show an intention on the part of the testator that the son's wife should take even though there were children.

By Sec 1299 of the Civ. Code, the wife is " entitled, by way of dower, to an absolute property in the one-third part of all his movable effects, in possession, or reducible to possession, at the time of his death, after payment of all just debts." Held, that the estate created by this provision is a dower estate and not an estate by descent.

Kinney & Ballou, for defendant Mary S. Carter.

A. S. Hartwell, for defendants, the minors.

FREAR, J, ; AND PERRY, CIRCUIT JUDGE, AND W. R. CASTLE, ESQ., OF THE BAR, IN PLACE OF JUDD, C.J., AND WHITING, J., DISQUALIFIED.

OPINION

FREAR J.

The plaintiffs are the trustees under the will of Henry A. P. Carter, late of Honolulu, deceased, which will was admitted to probate December 30, 1891. After making certain specific bequests, the testator devised and bequeathed the residue of his " estates, real and personal, " to trustees in trust, among other things, " To hold one-sixth of my said estates in trust for my son Charles L. Carter, the income thereof to be paid him in quarterly payments for the term of his natural life and after his death I give, devise and bequeath the said one-sixth to his heirs, to be divided as now prescribed by the laws of this Kingdom (now Republic) in cases of persons dying intestate." There were similar provisions for the testator's wife, three daughters and one other son, and their heirs respectively. The said Charles survived the testator and afterwards deceased, leaving his wife, Mary S. Carter, and their children, Henry A. P. Carter and Grace S. Carter, the defendants herein, and no other heirs.

This is a bill in equity brought by the trustees for instructions as to whether, upon the foregoing facts, the said children alone or the said children and the said widow together are entitled to " the said one-sixth" devised bequeathed to the " heirs" of the said Charles, by the clause of the will above set forth. The Circuit Judge entered a decree pro forma in favor of the children alone, by consent of the widow without prejudice to her right of appeal, and the case comes here on her appeal from that decree.

The question is, whom did the testator intend to include under the term " heirs, " as shown by the language of his will? We cannot enter into any speculations as to what he may have intended in fact. The question is, what was his expressed intention? He might have intended to include almost any class of persons under the term " heirs" and his intention would be carried out if it were expressed with sufficient clearness and were not contrary to any rule of law. In this case it is conceded that the persons who are to take as heirs were intended by the testator to be determined by reference to the Hawaiian statutes. Only two statutes, or rather two portions of the Civil Code, are called in question. One is Ch. 32 (Comp. L. p. 474), entitled " Of the Descent of Property, both Real and Personal, " of which the portions involved in this case are: " Sec. 1447. Whenever any person shall die intestate within this Kingdom (now Republic), his property, both real and personal, of every kind and description, shall descend to and be divided among his heirs, as hereinafter prescribed. Sec. 1448. The property shall be divided equally among the intestate's children. % y(3)5C If the intestate shall leave no issue, his estate shall descend one-half to his widow ***." It is obvious that if this statute alone, relating to descent, is to govern, the widow takes nothing, because, although she would be an heir if there were no children (Thurston v. Allen, 8 Haw. 392), yet, there being children, they alone are the heirs. The other statute involved is the first section of Article 54, (Comp. L. p. 429), entitled " Of Dower, " which reads as follows:

" Sec. 1299. Every woman shall be endowed of one-third part of all lands owned by her husband at any time during marriage, in fee simple, in freehold, or for the term of fifty years or more, so long as twenty-five years of the term remain unexpired, but in no less estate, unless she is lawfully barred thereof; she shall also be entitled, by way of dower, to an absolute property in the one-third part of all his movable effects, in possession, or reducible to possession, at the time of his death, after payment of all his just debts." A formal claim is made that the widow is entitled to take under both portions of this section, but it is so obvious that she cannot take as an heir under the first part of the section, which clearly relates to dower, that the claim under that portion of the section is not pressed. The claim under the latter portion of the section is relied on.

Two grounds are urged in support of the view that the widow may take under the latter portion of this section. One is that it appears from the language of the will that the testator intended that the widow should take in any event and that since she cannot take under the statute of descent she must take under this statute. The portion of the will relied on to show such an intention reads thus: " Should however any of the said beneficiaries die before me leaving husband wife, or children the share left to that beneficiary shall descend to such children or other heirs as if such beneficiary had survived me." The argument is, that the use of the words " such children, or other heirs" shows that the word " heirs" was intended to include " wife" mentioned a little before in the words " husband, wife, or children, " and that therefore the testator intended or understood that the wife should take as one of the " heirs" and that since she could not take in that capacity under any other statute, she must take under the latter part of the section in question. We grant that the word " heirs" may include " wife" and that the testator so intended; but it does not follow that he intended that word to include " wife" under all circumstances. On the contrary, he expressly directs that the property shall go to " such children or other heirs, " and that is precisely what we should expect him to say if he had in mind only the statute of descent, for that provides that the children or wife, not the children and wife, shall inherit. This portion of the will, indeed, supports...