Kinney v. Oahu Sugar Co.
| Decision Date | 28 May 1917 |
| Docket Number | No. 1005.,1005. |
| Citation | 23 Haw. 747 |
| Parties | HELEN K. KINNEY v. OAHU SUGAR COMPANY, LIMITED. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT, FIRST CIRCUIT. HON. W. L. WHITNEY, JUDGE.
Syllabus by the Court
The technical meaning of words used in a will may be subordinated to the real intent of the testator, but the presumption is that technical words were used in their technical sense, and they will be so construed unless the context shows a clear intent to the contrary.
The phrase “heirs of the body” is the ordinary, proper and technically accurate one to use in the creation of an estate in fee tail.
The word “limited,” when used with reference to the creation of an estate in real property, means “defined.”
A testatrix devised land to K and K, her husband, “unto them and to the heirs of the body of either” and “upon default of issue” to trustees appointed by the will. Held, that the testatrix intended to devise to K and K an estate in fee tail, and that, as estates tail cannot exist in Hawaii, the devise took effect as an estate in fee simple in K and K, it not appearing that a life estate in K and K with remainder to the heirs of the body of either would more nearly carry out the intention of the testatrix.
D. L. Withington ( Castle & Withington and W. C. Achi on the brief) for plaintiff in error.
W. F. Frear and J. W. Cathcart ( Frear, Prosser, Anderson & Marx and Thompson, Milverton & Cathcart on the brief) for defendant in error.
This is a writ of error to review the judgment of the circuit court of the first circuit in an action of ejectment to recover a tract of land situate at Hanohano, district of Ewa, city and county of Honolulu. The case was tried jury waived, and judgment was rendered in favor of the defendant.
The plaintiff claimed title to an undivided one-third of the land as one of the heirs of the bodies of Kahakuakoi and Kealohapauole, devisees under the will of the late Bernice Pauahi Bishop, and as heir of a deceased brother. There was evidence that Kahakuakoi and Kealohapauole had three children, Niulii, George and Lydia; that Niulii died in 1890, leaving two children, Helen (the plaintiff) and John Paalua; that Kahakuakoi and Kealohapauole died respectively in 1910 and 1914; and that John Paalua died in 1915. It further appeared that the land was mortgaged on December 15, 1890, by Kahakuakoi and Kealohapauole to Bishop & Company, bankers, and was sold under foreclosure of the mortgage on January 28, 1893. Through mesne conveyances the defendant claims title under the foreclosure deed, and also by adverse possession. On October 22, 1894, Kahakuakoi, Kealohapauole and George and Lydia Kealohapauole executed a deed of all their right, title and interest in the land to the defendant's grantor for a nominal consideration. In the trial court the two principal questions were, one of fact, whether the plaintiff had proven her alleged heirship, which, upon conflicting testimony, was decided in her favor, and one of law, whether she took any estate in the land under the provisions of the will, which was decided against her. This court has only to deal with the question of law. The case has been thoroughly and elaborately briefed and ably argued, but much of the discussion has been of an academic nature and seems not to require attention in all its many phases.
The testatrix died October 16, 1884. In the fifth paragraph of her will she said The clause was modified in the eleventh paragraph of the first codicil to the will, as follows: “I revoke so much of my said will as devises the land known as ‘Mauna Kamala’ to Kahakuakoi (w) and Kealohapauole her husband; and in lieu thereof I give, devise and bequeath unto said Kahakuakoi (w) and Kealohapauole (k) all of that tract of land known as Hanohano, situated at Ewa, Island of Oahu, formerly the property of Puhalahua; to have and to hold as limited in said fifth article of my said will.”
On behalf of the plaintiff in error (also plaintiff below) it is contended (1) that at common law the devise would not create a fee tail general or a fee tail at all in Kahakuakoi and Kealohapauole, but contingent remainders in the heirs of the body of either vesting at death, and in default of heirs of the body of either, then to the trustees; (2) that in Hawaii, even if the devise created a fee tail at common law, this is to be construed as a fee simple, or an estate for life with remainder over, according as such construction will carry out more nearly the intent of the testator drawn from the will and the surrounding circumstances; (3) that the cases of Nahaolelua v. Heen, 20 Haw. 372, and Boeynaems v. Ah Leong, 21 Haw. 699, settle the law in Hawaii, that even if a devise or a deed creates at common law a fee tail, if it appears that the testator or the grantor had in mind some benefit for the heirs of the body, the devise or grant will be construed as a life estate in the first taker and remainder over; (4) that the use of the words “of either” and the devise over in default of issue, meaning heirs of the body of either, show that, in the mind of the testatrix, the heirs of the body of either were to take an interest, as they cannot take by descent, they must take by purchase, which would require under the decision in the Nahaolelua case, a holding that the estate created by this will is a life estate by the entirety with remainder over to the heirs of the body of either; (5) that it will be presumed that the testatrix intended to create a legal estate, rather than an illegal one-a devise for the life of the first takers, rather than a fee tail which cannot exist in this Territory; and (6) that the construction contended for is reenforced by the use of the word “limited” in the codicil, especially if the devise to the first takers creates a fee simple, for then the devise over is a conditional estate dependent on the defeasance of the fee simple already given.
On behalf of the defendant in error it is contended (1) that the words “heirs of the body of either” are words of inheritance and not of purchase, and the estate would be a fee tail at common law, and also in Hawaii, if fees tail could exist here; (2) that where, as in this Territory, fees tail do not exist, a fee tail, in the absence of controlling words to the contrary, would be a fee simple; (3) that it was the intention of the testatrix to create an estate of inheritance, and not a life estate and remainders; (4) that the word “either,” the gift over “upon default of issue,” the will and codicils taken as a whole, and legal presumptions, all tend to support that view; and (5) that the intention of the testatrix can better be met by a holding that Kahakuakoi and Kealohapauole took title in fee simple, than that they took for life only. The claim of title by adverse possession, and the contention that the defendant has at least the right of possession for a term of years under a lease made by Kahakuakoi and Kealohapauole for fifty years from January 1, 1892, under the view we take of the case, need not be considered.
The will and codicils were drawn with much care and accuracy of expression. It appears from the record in the proceeding for the probate of the will which is in evidence in this case that they were drafted by Francis M. Hatch, at one time a justice of this court, but the language used must, of course, be regarded as that of the testatrix herself. It is obvious that the testatrix knew how to express an intention to create a life estate and remainder, as well as to devise in fee simple. Thus, in the fourth paragraph of the will, there was a devise of land to L, “to have and to hold for and during the term of her natural life; and after her decease to my trustees upon the trusts below expressed.” There were a number of such life estates given by the will and codicils. In the ninth paragraph of the first codicil there was a devise of land and a fishery to D, “to have and to hold with the appurtenances to him, his heirs and assigns forever.” In the fifth paragraph of the first codicil there was a devise of land to K and H, his wife, “to have and to hold for and during the terms of their natural lives and that of the survivor of them; remainder to my trustees upon the trusts named in my said will.” It would seem, then, that in devising the land in dispute to Kahakuakoi and her husband “unto them and to the heirs of the body of either,” and “upon default of issue” to the trustees, the testatrix intended to create an estate other than a fee simple, or a life estate or estates and remainders. What was it? No authority exactly in point has been found.
The word “heirs,” though it may be and sometimes is used as a word of purchase, is primarily, ordinarily, and in a strict technical sense, a word of limitation denoting an estate in fee simple. 40 Cyc. 1574; 2 Jarman on Wills (6th ed.) 69; Thurston v. Allen, 8 Haw. 392, 402; Ninia v. Wilder, 12 Haw. 104, 108; Iuko v. Holt, 9 Haw. 88, 91. And, at common law, after the enactment of the statute de donis conditionalibus in 1285, the phrase “heirs of the body” was the ordinary, proper and technically accurate one to use in the creation of an estate in fee tail. 2 Jarman, supra; Rooke v. Queen's Hospital, 12 Haw. 375, 390; Nahaolelua v. Heen, supra, at p. 376. In Pearsol v. Maxwell, 68 Fed. 513, where there was involved a devise to one and “the heirs of her body,” and a contention was advanced for a life estate...
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Tracy v. Baker
...with the general weight of authority, 4 Page, Wills, § 1420, n. 13 (Lifetime Ed., 1941), and with prior Hawaii authority. Kinney v. Oahu Sugar Co., 1917, 23 Haw. 747, affirmed 9 Cir., 255 F. 732, certiorari denied 249 U.S. 616, 39 S.Ct. 391, 63 L.Ed. 803. The fact that the clause includes "......