Thurston v. Allen

• Decision Date: 28 December 1891
• Citation: 8 Haw. 392
• Parties: L. A. THURSTON ET AL., EXECUTORS OF ESTATE J. N. ROBINSON, v. S. C. ALLEN ET AL., EXECUTORS AND HEIRS OF JAMES ROBINSON. L. A. THURSTON ET AL., EXECUTORS OF ESTATE J. N. ROBINSON, v. S. C. ALLEN ET AL., EXECUTORS AND HEIRS OF JAMES ROBINSON. HEARING, DECEMBER 28, 1891.
• Court: Hawaii Supreme Court

8 Haw. 392

L. A. THURSTON ET AL., EXECUTORS OF ESTATE J. N. ROBINSON, v. S. C. ALLEN ET AL., EXECUTORS AND HEIRS OF JAMES ROBINSON.

L. A. THURSTON ET AL., EXECUTORS OF ESTATE J. N. ROBINSON, v. S. C. ALLEN ET AL., EXECUTORS AND HEIRS OF JAMES ROBINSON. HEARING, DECEMBER 28, 1891.

Supreme Court of Kingdom of Hawai'i.

December 28, 1891.

DECISION FEBRUARY 17, 1892.

SUBMISSION OF CONTROVERSY, UNDER SECTION 1140, CIVIL CODE.

Syllabus by the Court

The testator devised land to his sons M. and J. for the term of their natural lives, to share and share alike, and after the decease of M. one half to his heirs, and after the decease of J. one half to his heirs.

Held M. and J. are tenants in common for life.

By the Rule in Shelley's Case, M. and J. would have the whole estate absolutely. But the Rule in Shelley's Case, by virtue of its being a part of the Common Law of England, is not in force in this kingdom, the Common Law as such not being in force here. Though free to adopt the rule, the Court declines to adopt it as the law of this kingdom.

The intention of the testator should govern in the construction of wills. The intention of the testator was to give only a life estate to M. and J. This would be defeated by the operation of the Rule in Shelley's Case.

The " heirs" of J. are whoever are entitled to his property by the statute of descent, if he had died seized of this property and intestate. J. died leaving a widow but no issue nor father nor mother;

Held that his " heirs" are his widow as to one half, and his brother and sisters as to the other half.

A devise of real and personal property to executors in trust " the income from the same to be paid to J. N. R. for the term of his natural life, and after his death I give, devise and bequeath the said one-eighth to his heirs, " creates a valid trust, and J. N. R. has the income for life and at his death the eighth goes to his statutory heirs, who in this case are his widow, as to one half, and his brother and sisters as to the other half.

A widow is an " heir" by our statute of descent.

Thurston & Frear, C. L. Carter and A. P. Peterson, for plaintiffs.

A. S. Hartwell, F. M. Hatch and Ashford & Ashford, for defendants.

JUDD, C.J., MCCuLLY, BICKERTON, DOLE, JJ.

SUBMISSION.

The undersigned, Lorrin A. Thurston and Caroline J. Robinson, Executors of the Will of J. N. Robinson, deceased, and Caroline J. Robinson, Mark P. Robinson, Mary E. Foster, Victoria Ward, Bathsheba M. Allen and Samuel C. Allen, her husband, Matilda Foster and W. E. Foster, her husband, Annie Jaeger and Albert Jaeger, her husband, Lucy McWayne and Albert McWayne, her husband, and S. C. Allen and M. P. Robinson, Executors of the Will of James Robinson, deceased, respectfully represent that they are parties to a question in difference which might be the subject of a civil action in the Supreme Court, which they have agreed to submit to the Justices of the Supreme Court without suit.

That the facts out of which said controversy arises are as follows:

James Robinson, late of said Honolulu, deceased, by his last will and testament, duly admitted to probate, a copy of which is hereto annexed and made a part hereof, made certain bequests and devises of property within the jurisdiction of this Court to his son John N. Robinson.

Said John N. Robinson died childless on the 25th day of March, 1890, leaving a will which has been duly admitted to probate, by which he devised all of his estate to his widow, Caroline J. Robinson, above named.

Rebecca Robinson, widow of the said James Robinson, died before the said John N. Robinson.

The plaintiffs are the Executors of the Will of said John N. Robinson, and his widow.

The defendants are the brother and sisters of said John N. Robinson, and the husbands of said sisters respectively, and the trustees under the will of said James Robinson.

The questions in issue are:

1. What estate did John N. Robinson take under the first, fourth and seventh paragraphs of the will of said James Robinson?

2. To what estate is the said Caroline J. Robinson now entitled therein?

Following are the First, Fourth and Seventh paragraphs of the Will of James Robinson, the subject of this controversy:

First. I give, devise and bequeath to my wife, Rebecca Robinson, for the term of her natural life, the house and premises in Nuuanu valley, being my present place of residence; also the land of Pakaukai near the Nuuanu valley stream; also the land on the opposite side of the road from my present place of residence in Nuuanu valley; also the fish pond premises near the corner of Liliha street and the Ewa road, Honolulu; the whole of the said described property to be held and enjoyed by my said wife for the term of her natural life, or so long as she shall remain unmarried and my widow, and in the event of her marriage or death, I give, devise and bequeath the whole of the above described property to my sons, Mark Robinson and John N. Robinson for the term of their natural lives, to share and share alike, and after the decease of Mark Robinson, I give, devise and bequeath one half of the said property to his heirs, and after the decease of John N. Robinson, I give, devise and bequeath one half of said property to his heirs; and it is my will that the tomb on the premises aforesaid shall remain there as a burial place for myself and my family, and shall never be disturbed. I also give, devise and bequeath to my said wife, Rebecca Robinson, all the furniture and household effects in my present place of residence in Nuuanu valley, and the sum of twelve hundred dollars a year for the term of her natural life, the same to be paid to her by my executors hereinafter named in quarterly payments of three hundred dollars, the foregoing provisions to be accepted by my said wife in lieu of dower.

Fourth. I give, devise and bequeath to my sons, Mark Robinson and John N. Robinson, to share and share alike, for the term of their natural lives, all the Pakaka or Point premises situated in Honolulu, and all improvements and appurtenances to the same belonging, the stone building and premises at the corner of King and Nuuanu streets, Honolulu, and the land of Hoaeae, Ewa, Island of Oahu, and all tracts of land in Ewa in which I have an interest; and after the decease of Mark Robinson, I give; devise and bequeath one half of the said property to the heirs of Mark Robinson; and after the death of John Newcomb Robinson, I give, devise and bequeath one half of the said property to John N. Robinson's heirs at law. I also give, devise and bequeath to Mark Robinson and John N. Robinson, to share and share alike, all the cattle, horses and sheep, and all other personal property to the land in Ewa aforesaid belonging or appertaining.

Seventh. One-eighth of the rest and residue of my property, both real and personal, I give, devise and bequeath to my executors hereinafter named in trust, the income from the same to be paid in quarterly payments (here the children other than John N. Robinson are devised one-eighth each). One eighth to my executors hereinafter named in trust, the income from the same to be paid in quarterly payments to my son John N. Robinson for the term of his natural life, and after his death I give, devise and bequeath the said one-eighth to his heirs.

OPINION

JUDD C.J.

We shall first discuss the first and fourth paragraphs of the will in question, and much of the reasoning on these paragraphs will apply to the seventh paragraph. Eliminating therefrom what is unessential to be discussed here, the devises of the land (after the life estate of the testator's widow in the land in the first paragraph) are to Mark P. Robinson and John N. Robinson for the term of their natural lives, to share and share alike, and after the decease of Mark one-half to his heirs, and after the decease of John one-half to his heirs. Condensed still further the question is, what is the estate of John in the property, the devise being to him for life as tenant in common with Mark, remainder of the moiety to his heirs? We use the expression " as tenant in common" advisedly. The contention by Ashford & Ashford, for the defendants, that the words of paragraphs first and fourth create a joint tenancy in the testator's two sons, Mark and John, with the right of survivorship, is without foundation. The distinguishing feature of joint tenancy is that each has the whole and every part; " each holds per my et per tout; each is the holder of the whole." The definition quoted by counsel from Greenleaf's Cruise, p. 364, " Where lands are granted to two or more persons to hold for them and their heirs * * without any restrictive, exclusive or explanatory words, all the persons named in such instrument take a joint estate, " destroys the position taken. The words in the devise, that Mark and John are " to share and share alike, " show conclusively that each is to have and enjoy a half, which would make them tenants in common, and that each is not to be holder of the whole. Moreover, the limitation in the devise of the share of each in the estate to the heirs of Mark and John after their decease, respectively, is on its face repugnant to the vesting of the estate in the survivor, be it Mark or John. See Perry vs. Woods, 3 Ves. Jr., 204.

We adhere to the doctrine laid down in Awa vs. Horner, 5 Hawn. 543, that it would be unwise to adopt the principle of joint tenancy, where a conveyance is made to two or more persons without indicating how the same shall be held. Such estates we consider to be tenancies in common, unless expressly declared to be joint tenancies by the instrument creating them.

The plaintiffs contend that the Rule in Shelley's Case is in force in this kingdom, or if not in force it should be...