Ninia v. Wilder
| Decision Date | 28 July 1899 |
| Citation | 12 Haw. 104 |
| Parties | NINIA (W.), PIIKOI AND LUUKIA (HIS WIFE), KAHANA AND KAHALE (HER HUSBAND), MELE AND SAM HOOKANO (HER HUSBAND), KUKALIA (W.) AND KAMAOLI v. ELIZABETH K. WILDER. |
| Court | Hawaii Supreme Court |
Submitted October 4, 1898.
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
A testator devised certain lands to his wife, sons, daughters and grandchildren, concluding the devise with the following language: " The above enumerated property is for them all and their heirs and representatives forever." By a subsequent clause in the will, it is provided that, " if one of them should die, his or her share shall not go to his or her husband or wife, but if he or she shall leave children, then his or her share shall go to such child or children, and any of them who shall have no children, his or her share shall go to those remaining without any division of his or her share."
Held Under the first clause the devisees take a fee simple absolute, which was by the subsequent clause cut down to a fee simple, defeasible on the death of the respective devisees, without leaving a child or children, in which event the property vests in the survivor or survivors by way of executory devise.
The expression " if one of them should die" has reference not to the death of the devisees in the lifetime of the testator, but to death at any time. The enjoyment of the estate by those ultimately entitled being postponed to a future day by a supervening estate, it is but just to make the chances of survivorship applicable to such future day.
The preamble, or proem, of a will may be considered in construing the instrument, and, in doubtful cases, it may control.
A deed from the owners of the contingent fee, together with a release from the executory devisees, will convey a good and sufficient title; and an agreement for the sale of land entered into between the owners of a contingent fee and the executory devisees with a second party will be specifically enforced against such second party.
A. W Carter for plaintiffs.
Kinney, Ballou & McClanahan for defendant.
WHITING, J., L. A. THURSTON, ESQ., OF THE BAR, IN PLACE OF JUDD, C.J., DISQUALIFIED, AND A. S. HUMPHREYS, ESQ., OF THE BAR, IN PLACE OF FREAR, J., ABSENT.
A. S HUMPHREYS, ESQ.
One Okuu, being seized and possessed as of his own demesne in fee of the real estate herein involved, died testate.
In item one of his will, the testator, after providing for the payment of his debts and funeral expenses, devised certain real estate situated at Waikiki, Honolulu, and bequeathed certain personal property, to Aliiloa, his wife, Ninia, Piikoi, Kahana, Mary and William Kuku, his children, and Kukalia and Kamaoli, his grand-children. This devise and bequest is concluded as follows: " The above enumerated property is for them all and their heirs and representatives forever."
In item two of the will, the testator appoints his beloved daughter Ninia as administratrix (lunahooponopono) of the above enumerated property and makua over his children, grandchildren and wife, directing her to collect the money from the lands that are leased and to give each one their proper share as directed in his will. And further authorizes her to sell the personal property enumerated in his will, if she is unable to take care of or manage the same, and further empowers her to lease the land without hindrance, but forbids her to make any conveyance or deed.
Item three provides that after the death of Ninia the management of the property shall go to one of the above mentioned persons.
Item four is in the following language: " If one of them should die, his or her share shall not go to his or her husband or wife, but if he or she shall leave children, then his or her share shall go to such child or children; and any of them who shall have no children, his or her share shall go to those remaining without any division of his or her share."
All of the devisees and legatees survived the testator, but since his death Aliiloa, his wife, and William Kuku, his son, have deceased; the latter having died under age, unmarried and without issue. Of the other four children mentioned in the will, Ninia has married and has a child Kukalia, mentioned in said will, who in turn has two children, now minors; Piikoi is married and has two children, one of whom is a minor: Kahana is married and has two children, both minors; Mary is married and has five children, all minors.
On the 12th of November, 1897, the surviving devisees, to wit: Ninia, Piikoi, Kahana, Mary and Kukalia and Kamaoli with their spouses, respectively, entered into an agreement with the defendant whereby the defendant agreed to purchase and said devisees to sell, forthwith, for the sum of seven thousand dollars, the real estate devised in item one of said will; the devisees agreeing " to give a good and sufficient title." The defendant having declined to perform the agreement, this bill was filed against her for a specific performance thereof. The defendant in her answer admits the execution of the agreement and her refusal to perform the same, basing her refusal on the alleged inability of the complainants to give her a good and sufficient title. While apparently hostile, the suit is in reality a friendly one, brought for the purpose of obtaining a construction of the will of Okuu.
The complainants contend that the first clause of the will devises the premises in question in fee simple to those therein mentioned, and that the fourth clause cannot have the effect of cutting down the fee simple to an estate for life merely; that the expression in said fourth clause " if one of them should die" has reference to the death of the devisees in the lifetime of the testator, and that said devisees having survived the testator, take an indefeasible estate of inheritance.
The defendant admits that the first clause, if construed alone, would vest a fee simple in the devisees, but argues that the fourth clause cuts down the fee simple to an estate for life with remainder to the children of the devisees, or, in default of children, to the survivor or survivors of the devisees. In other words, that these remainders are substitutes or alternatives, one for the other, the latter to take effect in case the prior one should fail to vest in interest. Technically, this would be called a limitation by way of remainder on a contingency with a double aspect.
Watson vs. Smith, 28 Am. St. Rep. 665; Hopkins on Real Property, p. 287; 2d Washburn on Real Property, p. 575 et seq.
The defendant further contends that the expression in the fourth clause of the will " if one of them should die" does not mean that the death is to happen in the testator's lifetime, but means death at any time, and that such being true the fee given in the first clause is necessarily cut down to a life estate.
The Circuit Court sustained defendant's contention, using the following language: heirs and representatives forever,
In every question arising on the construction of a will, it is alike dictated by justice, common sense and the rules of law, that the first inquiry, shall be, what was the true intention of the testator-what is his will? And if that can be satisfactorily discovered, the next is, can such intention be carried into effect consistently with the rules of law? The presumption is that every testator means just what he says; that his words are the signs of his will and that he desires it executed as he has expressed it without the elimination of any provision thereof, or the addition of any provision thereto.
In the first clause of this will, the testator devises his property to the persons therein named and " their heirs and representatives forever." These are apt and proper words for the conveyance of the estate in fee and the intention to gave the fee could not have been more adequately expressed if every word in the English language had been employed. Under the rules of law, this devise must be recognized as a fee simple, and the plain intention of the testator executed; but it is not necessary to constitute a fee simple, that it should be absolute. It may be a fee simple, defeasible or determinable upon the happening or not happening of some future event. In order to hold that the devisees in this case have a simple life estate, we should be compelled to strike out the clause devising the property in question to them, the potent words " their heirs and representatives forever." If these words are to remain in the will, and the necessities of the case do not coerce their elimination it results from the very nature of things that the contention of defendant must fail. If by that clause complainants take an...
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