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DAILY BULLETIN SUPPLEMENT. - FEBRUARY 18th, 189g.
SUPREME COUltT OF THE HAWAIIAN ISLANDS,
IN BANCO. SPECIAL TERM, DEC. 21, 1891.
i"fvtr .,,.,- rfiX.-S.r.-,- n.,.TTr-r- i i...i,tx-.v.-
"UVlililJ .V JLUUilU. .A- U.LUtfljll. -. -lJ-J..-ow.,
THE WTLL OF JoiiN N. Rci-INSON,
line J. -Robinson',
deceased ; and Cai.o-
' 3Iark P. Robinson, Maiy E. JFogier, Yictoria Ward, Bafchsheb.i
31. Allen, and Samuel C. Allen her husband ; Matilda
A. Foster, and "V. E. Foster her husband; Annie
Jaeger, and Albert Jaeger her husband; Lucy H.
McWayne, "and Albert McWayne her liusband; and
,,S.-C. Allen and M. P. Robinson, Executors of the Will
of James Robinson, deceased,
Before Jotd, 0. J-, McCui.lt. Bickei.tox and Doij:, .1. J.
Seventh One eighth of the rest and residue of my pioper
ty 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.
By the Cg-vTkt.
" Submission. of Controversy under Section 1140, Civil Code. ,,
5r ' "
'We shall first discuss the first and fourth paragraphs of
the will in question, and much of the reasoning on theso-par-agiaphs
will apply to the seventh paragraph. Eliminating
therefrom what is unessential to be discussed here the do
vises 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
shale and share alike, a'nd after the deceaso of Mail: ouo half
to his heirs, and after the decerfso of John one half to his
f heirs. Condensed still further, the question is, what is the
estate of John in the propertj-, the devise being to him for
lifo as tenant in common with Mark, remainder of the moiety
to his heirs.? We use the expression "as tenant 'in common''
advisediy. The contention by Ashfoid & Ashford for the de
fendants that the words of paragiaphs first and fourth create
a joint tenancy in the testatoi's two sons Mark and John
with the right of survhorship is without foundation. The
distinguishing feature of joint tenancy is that each has the
whole Mid. every part; "each holds pec my ct per lout; each is
be had to the laws and usages of other countries," section
We and our predecessors on this bench have felt free to
examine into the reasoning of every principle of the common
law as it has been presented to us for adoption from time to
destroy an estate carved out for lifo in A, because after his
death it was devised to his " heirs," for thus the testator's
intention would be defeated.
It was clearly the intention of tlte king and government in
the use of the word "heirs" in royal patents to give an estate
time. We were much impressed with the statement made at j in fee simple to the patentee, and was introduced to define
two or more persons to hold for tbem and their hoirs
without any restrictive, cxvhuivs or explanatory wortli, all the
persons named in such instiumcnt take a joint estate," de
stroys the position taken. Tho words in the devise, that
The testator devised laud to his sous M. and J. for the' term
of their natnr.il lnos, to share and share alike, and after
the decease of M. one half to his heirs, and after the de
cease of J. one half to his heirs ;
Held, M. and J. arc tenants in common for life.
By tho Rule in Shelly's Case 3L and J. would have the whole
estate absolutely. But tho Rule in Shellv's case bv vir
tue of its being a part of the Common Law of England is ( tjie lo(iev 0f the whole." The definition quoted by counsel
not in force in this kingdom-the Common Law as such Greenleaf g CnlisC) p 3lU wbere llinds are granted to
HOil UC1U11 All HJH-G UCIU .
ThougUi free to adopt the rule, tho Court declines to adopt i(
as ii,he law of this kingdom.
The intension of the testator should govern in the construc
tion of wills. t
- i -
The inlcnt'ion of thetestator was to give only a-life estate to i Made and John are " to shave and share aiiko " show eonclu
M. mad J. This would be defeated by the operation of , . , fl , ,, f i.v n(1 ,,.. ., l.-if wi,icu woui(i
the rule in Shellv's case. , , , . . , , , , , . , , ,
-..,,.-. , . . . , . make them tenants m common, and that each is not to bo
by the statute of descent, if he had died seized of this lUer of the whole. Moreover the limitation in the deuftt
property and intestate. of the share of each in the estate to the heirs of Mark and
J. died leaving a widow but no issue nor father nor mother: John after their decease, respectively, is on its face ropug
Held, that his "hens" are his widow as to one half and n&n to.the vesting of the estate in tho survivor, be it Mark
his brother and si tors as to the other half. i . , , 0 -r -n- ,1 , ., v, , T nn i
or John. See Perry v. oocis, J vfis. Jr., yyt.
A devise of real and personal property to executors in tiust I ,.- -. , , , ,, . , i lr, ,. . a,... TTr.,.r
. , . , i ,, i -i i t xi -i t I eauhere io the docuiue hud. ikMn m Awi . xioinor,
A i . -- w.. . i ft ' IT 1 1 1 i.l1. t J 1 .
o Haw. uo, tliat it- woum e unwiSS W Hiiop uio pnucipiB
Of -joint tenanc-, where a convoyuJica is made to lyo or more
persons without indicating how the same slmll be huld, Such
estates v.re consider to be tenancies in common, unless ex
pressly declared to be joint tenants by tho instrument cre-
, ating them.
The plaintiffs contend that the rule in Shelly's case is 1
force in this kingdom, or if not in force it should be reeog'
i - -i - 1...1.J . ii ..,i n..,i ,.,i:., i. u t.
) nizeu aiut auopieu m iuib case, aim iu.it uuuwium m mu
several devises in the various paragraphs of the will in ques
tion, they being devises to Johu N. Robinson for life, remain
v to his heirs, created an estate in fee simple in John so
that it was ,lUenablo by him during his lifo and devisable by
hiin by his will. It as, admitted and thero is no doubt that
the argument by Mr. Peterson, of counsel for the plaintiffs,
that of the nine hundred reported cases of this Court in only
about nine cases or one per cent., has this Court departed
from the common law on the point under consideration.
When we have followed and adopted the common law we
have felt that its reasoning was sound and jn&fc and its prin
ciples adapted to our circumstances. When we have felt
otherwise we have not hesitated to reject it. And although
it may now bo asserted with considerable assurance in view
of the past history of this Court that, when a question arises
new to the courts" of this kingdom, we will probably follow
the precedents and principles laid down by the courts of
V those countries wheie the common law prevails, we are net
bound to follow them. They are not absolutely authoritative
and until farther restrained by btatute, o shall continue to
rejoice in our freedom. It was urged upon us that we should
now adopt the rule in Shelly's case, because a number of
titles had been passed and vested in this country -under com
petent legal advice according to this' rule. We are not awaie
judicially that this is the fact and, isolated instances of hard
ship where tho rule hns been followed would not compel us
to adopt it if in our judgment its general effect would be
Having declared that this Court is free to adopt the rule
in Shelly's case or to reject it, wo now discuss tho consider
ations wiiicn suomu contioi our judgment, in tne nrst place
the character ol the estate m tne patentee, xms is suppor
ed by 2 Redfield on Wills, 341. But it does not becomo
necessary in this case to discuss the question whether an
estate in fee can be created by grant or devise without tho
use of the word "heirs."
As regards the seventh paragraph of the will, or the trust
clause, we hae listeued to the able and exhaustive argu
ments by counsel for the plaintiffs and for defendants
on the question whether the devise in this paragraph
is with'n the rule in Shelly's case. It was admitted by
counsel t n both sides and it is undoubtedly law that
both estates, the freehold and the remainder, should be legal
or both be equitable or the rule will not apply. Counsel for
plaintiffs contend that the trust created in tho executors by
this viil is an active, private, executed trnst and therefore a
leg.d estate. But having conic to the conclusion that the
rule in Shelly's cabe is not to be applied to any of the devises
or bequests in any of the paragraphs of this will, we deem it
unnecessary io encumber this opinion with the discussion of
the question whether both estates are legal or whether the
estate of the executors (trustees,) is equitable and that of the
hoirs of John legal.
A valid tiust was created by the seventh paragraph of thp
will aud must continue so long as any of the eight mentioned
children of James Robinson survive. We therefore answer
tho first question of the submission as follows : John N.
Robinson took under the first, fourth and sevonth paragraphs
of the "w ill of James Robinson an estate for life.
The remaining question is, " to what estate is the said
Caroline J. Robinson entitled ? " She is the widow of John
N. Robinson who died without issue. The fact that John
devised all his estate to Caroline Ids widow is of no special
law in England when the right of
lho term of his natural life and after his death I give,
devise and bequeath the said one-eighth to his heirs,'1"
creates a valid trust and J. N. B. has the income for life i
and at his.death the eichth 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.
VA widow is an "heir" by our statute of descent.
OPINION OF THE COURT
f; - Jtod, c. j.
- Following is the submission in this ease :
The 'undersigned Lorrin A. Thurston and1 Caroline J. Rob
inson, executors of tho will of J. N. Robinson, deceased, and
xii'i-i ii i iii ii r residue of the property both real and personal, goes now to
In this kipcdom why have some tweut3--ihrec sti.trs of i ., , K Tr. v t i mi . V .
J J i the "heirs of John K Robinson. The exact words of the
Ameiican Union where it wa ft piirt of their fundamental j prtVl,graph are, ".one eighth to my executors hereinafter
lav in fclifw kiiuaJom,
respectfully represent that they are parties to a question in
, difference which might be the subjact of a civil action in the
Supreme Court which they have agreed o submit to the Jus
tices of tho Supreme Court without suit.
That the facts out of which said controversy arises are as
James Robinson, late of said 'Honolulu, deceased, by his
last will and testament duly admitted to probate, a copy of
winch is hereto annexed and made a pait hereof, made cer
Caroline J. Robinson, Mark P. Robinson, Mary E. Foster. ! tho rule in Shelly's case, i.
Victoria Ward, Bathsheba M. Allen and Samuel 0. Allen her devises in paragraphs first and fourth vn.? eonfir 8"c' a
husband, Matilda Foster and W. Fj. Foster her husband. ii t i i- n in s.fifn
. . t' , .,, . T it -TV -r iTT '""' . cstdte upon John, passing In- for the present the ii. t,uun
Annie Jaeger and Albert Jaeger her husband, Lucy McWayne ' .
aud Albert McWayne her husband, and S. C. Allen and M. P. I oilier paragraph seven is within the nilo. The rule may
Robinson, executors of the will of James Robinson, deceased, ' be stated thus: where the devise of a freehold is limited to
A for life and by the same devise or conveyance the remain
der is limited to "A's heirs," A has a single estate of inheri
tance in tho pioperty. The word " heirs " is a word of limit
ation of A's, the first taker's estate and heirs under such a
devise or conveyance would have no greater right than the
heirs of any grantee in fee where tho estate is conveyed
diieclly to the grantee and his heirs. That is, the heirs of
tain, bequests and devises of property within the jurisdiction . A take by "descent" from A and not as "purchasers" under
of this Court to his sou John N. Robinson: I ., . .. .... . t .-i.e.... n i n...
iiiu giujiiui ui uuw.swi ui i-. ii.uuj.'in uuium liiu iuiu uius,
" where an estate of freehold is limited to a person, and the
Said John N. Robinson died childless on the 25th day of
March, 1S90, 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 befor6 the said John N. Robinson.
Tiie plaintiffs are the executors" of the will of said John N.
Robinson, aud his widow.
The defendants are the brother and sibters of said John N.
Robinson, and tho husbands of said sibters 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 tho
first, fourth aud seventh paragraphs of the will of said James
(2) To what estate is the. said Caroline J. Bobinsou now
entitled therein? "
Following are the first, fourth and seventh paragraphs of
the will of James Robinson, the subject of this controversy:
same instrument contains a limitation either mediate or im
mediate, to his heirs or the heirs of his body, the word heirs
is a word of limitation, i. e., tho ancestor takes the whole
estate comprised in this term."
In the case before us James Robinson by paragraphs 1 and
4 of his will devised certain estates to John for life and after
his death to his heirs. By the rule under discussion John
took an estate of inheritance in fee simple in the land upon
tho death of his father, with the unrestricted right of dispo
sition. This is a rule of law aud not of construction, and in
all jurisdictions where the common lav.- is in force unrepealed
b- statute, estates within the rule arc controlled by it. This
rule takes its name from an eaily case reported in 1 Coke's
Reports, 93, in the 23d of Elizabeth, about A. D. 1580, as
I QJtsyJItSt 41ismi(y1i if wic iliait nn ri rtiflnf Arrrmn rf ntnmftTi InTV'
First I give, devise and bequeath to 1113- wife, Rebecca ' ' ' '
Robinson, for the term of her natural life, the house and The fundamental question for us to decide is, first, whether
premises in Nuuanu valley, being my present place of resi- this rule is in force in this kingdom and, secondly, whether we
iience ; aibo tne lami 01 oraKauKai near tne i uuanu vaiiev
aibo the Jami 01 i.'aKaukai near
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 aud the Ewa
road, Honolulu, tho ihole of the said described property to
be held and enjoyed by 1113- 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 tho above described prop
erly to iny sons, Mark Robinson and John' N. Robinson for
the term of their natural lives, to share and share alike, aud
after the decease of Mailc Robinson, I give, devise antr be
queath one half of tho said property to his heirs, and after
the decease of John N. Robinson, Tgive, aevise 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 1113' famiby, and shall never be
disturbed. I also give, devise and bequeath to m- said wife,
Rebecca Robinson, all the furniture aud household effects in
ny present place of residence in Nuuanu valley, and the sum
of twelve bundled dollars a j'ear for the term of her natural
life, the same to be paid to her 113- U13' executors hereinafter
named in quarteiv payments of three hundred dollars, the
foregoing provisions to be accepted 1 nnsaid wife in lieu
- Jdurth I give, devise and bequeath to nn- sons, Mark
Robinson and John N. Hobiuson, to share and share alike, for
the term of their natural lives, all the Pakaka or Point prem
ises situated in Honolulu, and all 'improvements and appur
Henances io tho same belonging, the stone building and prem
ises at the corner of King and Nuuanu streets, Honolulu, and
the land of Hoaeae, Ewa, Island of Oahu, and all tracts of
shall adopt it as the law of this case and of this kingdom.
Wo are obliged to answer that it is not, by virtue of its being
a part of the common law, the law in this kingdom. This
Court has held on repeated occasions that the common law
is not in force in this kingdom. As was said b3- Mr. Justico
McCully in the King v. Robeitson, G Haw. 725, "this is not
an English colony which brought out tho law of England to
be in foicn here, except as modified b- express statute." As
earty- as 1S52 Judge Robei t&on said, in speaking of the com
mon law of England b3 which a widow is not dowable in
leasehold eTjt.ites ; " but this doctrine of the common law
has not been adopted in this kingdom." In the matter of
F. R. Yida, 1 Haw. 108. Tho case of Kako v. Horton, 2 Haw.
211 (1SG0), was an action by a widow to recover damages for
the death of .her husband b3 tho wrongful act of defendant.
This Court then said, " It is urged b3 counsel for defendant
that the common law of England is in force iu this kingdom
and that therefore tho action cannot be maintained in this
Court. In our opinion this argument is not sound. We do
not regard the common law of England as being in force here
co nomine aud as a wholo. Its -principles and provisions are
in force so far as they have beon expressly or by necessary
implicalion, incorporated into our laws by enactment of the
Legislature, or have been adopted by tho rulings of the
courts of record', or have become a part of tho common law
favored 13" the lords of tljo lr.uded estates.
If it is such a wholesome mle and so important to cslab
law from its colonial period or adopted bj- its early statutes
pr constitutions, repealed it cither WI10II3' or a3 to wills ?
We confesg that the abolition of this ruje by the niajor- of
states whoso circumstances are not unlike our own has great
weight with us. And the considerations which, have led those
fitfttcs- to take this position one after another after having
watched i(s operation and being convinced of its unwisdom
The most cogent reason advanced against the adoption of
the nile is that it defeats the intention of the testator in
mnn3' cases- That it wonld defeat the intention of James
Robinson as expressed b3' his will is clear, He has eiprest,ly
made known b3" his will that his wish was that his sons
should njo3 ih& ute of his landed propeit3' oul during their
lives, and that jifter their death it should go to their heirs.
! He Jiad renoons for this sufficiently ptron in his own mind.
tx '"hod to kfcP) this property intact during the lifotlmo of
his nous or until CT ihmA (lie-- TM this wish has been
accomplished by reason of the 'l'"' tliat s H &
not raised until the death of one" of them has no IrJi fl6 im
The application of tho rule in Shelly's case to this will
would undoubted- defeat the testator's intention. Ch. Kent
says that though this rule has been firniby estalished as an
axiom of the English law of real propei' for near 500 years,
it is admitted to inteifei'c, in most cases, with the presumed,
and in man3" others with the declared intention of the parties
to the instrument to which it is applied 4 Kent Com. 218
p. Note 1 to sec. 332 of Jarman on Wills, by Bigelow, says
that the tendencj" of the American cases in such states (where
,the rule in Shell's case is in force) " is strongby in the direc
tion of giving effect to the intention of, the testator, when
ever there is indication, however indirect, of a knowledge of
tho existence of the rule, and of a purpose to escape its con
sequences ; provided tho language of the will is sufficient for
that puipcse." Citing L3tle v. Boveredge, 5S N. Y. GOO;
Huber's Appeal, 80 Penn. St. 348, &c.
. Chancellor Kent sa3s in 4 Kent's Com. 534 ' p. Of the
Construction of Wills : " The intention of tho testator is the
first and great object of inquin' ; and to this object technical
rules are, to a certain extent, made subservient. The inten
tion of the testator, to be collected from the whole will, is to
govern, provided it be not unlawful, or inconsistent with the
rules of law." In the construction of devises, the intention
of the testator is admitted to be the pole star b3" which the
courts must steer, id. 537 p.
And wo find that it was the intention of the testator in
paragraphs 1 and 4 of his will that his sons Mark and John
should have only life interests in the land.
The plaintiffs' counsel claim that the Court has recognized
tlic existence of the rule in Shell's case in a decision report
ed in G 'Haw. 6G2 : Chillingworth v. Lindsey. This decision
was 13- tho late Justico Preston aud did not go to the full
Court. But here tho Judge held that the facts took the case
out of the rule and he did not discuss the question whether
the rule was in existence or not, for it was unnecessar3' to do
so for it was not the issue before the Court.
Another position l:3r the plaintiffs is that as the words
used in tho royal patents granting lauds in this kingdom are
to "A and his heirs ami assigns," tho government and the ti10 u mt We know of no way of determining the persons
country have recognized and acted upon the rule in Shelly's ' intended by the will except by ascertaining the persons who
It i3 undoubted- true that b the common law of Eugland
the use of tho word "heirs" was nceessaiy in a grant in order
land iu Ewa in which I have an interest: and after the de-1 of this k-iimdmn bv universal usace. but no farther." See
.cease of Mark Robinson, I give, devise and bequeath ouo half j 1 0iaion of .Tudd C. J. in 10 Concdon, G Haw. G35; also of
of the said property to the heirs of Mark Robinson ; aud
after the death of John Ncwcomb Robinson, 1 give, devise
and lequeath one half of the said property to John N. Rob
inson'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, aud all other personal
pioperty to the land in Ewa aforesaid belonging or apper-taiuing.
Hartwell J. in re Apuna, id. 732, and Awa v. Homer, 5 Haw.
This Court is authorized to adopt tho reasonings and prin
ciples of the common law " so far as tho same may bo found
ed in justice and not in conflict with the laws and customs of
this kingdom," section 823 of Civil Code ; and " res'o'rt may
to create an estate in fee or an estate of inheritance. "If
tho gift was to one without am- words, of limitation it was
onby for such a term of time as ho could personalty hold it,
namely for his own life. " But if given to one and his heirs 1
;V ..,,. ,.,i,i in eC , c,iaaa,Ym nffor lnC .lnfl. ! lis follows : Caroline J. Robinson is now entitled to one
, ." ,,1 , i ii- nuarter of the lauds mentioned in the first and fourth para-
without being subject to Ins control by any act done by him, , .aphs of the wm of jameg Eobinson tlmt is one hfo o
to his descendants who wore recognized by the feudal law as John's half, and to one half of the eighth, that is, one Bix
his heirs " 1 Wash R P 28. Now although the adoption ' teen'th of the estate mentioned and described in the seventh
of the principle that tho word "heirs" is a word of "limita- j Pagraph of the said will as devised to John,
tion" and not of "purchase," undoubtedly led up to the ( Frear, C. L. Carter,
adoption of the rule in Shelly's case, yet it is not correct to an(1 A p peterscm for plaintiffs ;
say that the adoption by us of the principle that a grant or ' A. S. Hartwell, F. M. Hatch,
rlcftn'ob ( a n-A u;D v,ara" nvonfnc: mi pqtnte in foe in A would i and Ashford & Ashford for defendant:.
1 l t il i. lJfi -i n .11 p 1.
if the theory which gave it birth was in order that the "lord , Hjo1lo b" "" "s "' Piy uy we wm 01 nis
. .-,,!. t i- , . , father is concerned, for as hia interest In it was for his lifo
might not be deprived of his wardship by allowing tne heir ouy ie could not devise it and ho was practically " intestate "
to take as purchaser iuatoad of by descent," (2 Wash. R. P. ns to this property. B- tho first paragraph of the will of
2G9) orvlristlicr because of tho aversion of the common law duracs Robinson one liait (nnclmdedj ot the landsT therein de-
r ' ii Tiir lll...--'.
, , -, 1 1 ,1 1 ii ecriueu go now, , 01111 ueing cieau, to "ins John si "heirs.
to an inneiitance being m abeyance, wo answer that these ,, n f ,. n ' 1 i 1. -1- -i . : r n 1 . -,
0 ' B3 the fourth paragraph ono half (undivided) of tho land de-
reasons aie inapplicable to our circumstances. There is SCribcd therein goes now, John being dead, to '-John K Jjtob
moi'O force in the argument that it should bo adopted be- inson's heirs at law." Wo see no difference in this case.be
cause it favors the fiee alienation, of land. But it became , bvce th? W"JS he.irs " i111'1 "h,cIrs ?' laV, th?uSh tho
. case lor xue piamiiu.s is pernaps strengtueneu oy tne use 01
alienation ot land was not , the ktte-. terillf Tho testiltor has used these terms inter
By the seventh paragrapn ono eighth-jof alL the rest and
named in trust, the income from the same to be paid in quar-
terty payments to ni3' son JohifN. Bobinson for the term of
his natural life, and after his death I give, devise and be
queath the said one eighth to his heirs." It is not one
eighth of the income that is devised to John's heirs, but one
eighth of the corpus of the estate.
Who are the heirs of John N. Robinson ? If he had died
intestate, by our statute of descent his widow (he dying with
out issue and his father and mother both being dead) would
be entitled to one half of his property both real and personal
and his brother and sisters to the otlior half. Civil Code,
section 1448. That a widow is a statutory " heir " of a de
ceased intestate is clear b3 section 1447 of the Civil Code,
hich reads that the property both real and personal of a
person d3'ing intestate wftiii liii Jdngdojn shall descend to
and bo divided among his heira as hereinafter described.
" : "If he shall leave no issue, nor father or mother, his
ettj.to sha clefieend on liolf to his widow, wi the other
half to his brothers and sisters and to thp children of any
deceased brotheror sisteivbyjright of representation."
t is unnecessary to discuss man3 of the cases cited which
declare that a wifioiy is not fin ho?Fr Sh& is recognized na
one l3- our statute. She is even consi(leied ope of the kin
dred. '-If the intestate shall have been married, and leave
no kindred bfc p. widow, thep she shall ipherit pll his estate,"
latter part of section 1448, Civil Oocle,
It is cL"i0'l that the strict, technical meaning of the Word
"heir" U what James Robinson intended, that is heirs of the
blood of the ancestor. Wo find nothing in tho will to indi
cate this. The statute of descent, quoted from above, was
in force at the time James Pvobinson toade his will. We must
presume that he meant by "heirs" those who by the statute
of descent would take the propei'. It would have been
easy for him to have limited the Word heir to those of hia
blood but ho did not.
In this kingdom real as well as personal estate of an intes
tate descends together by the same statute to a person's
heirs, there being no distinction between the descent of real
ty and personalt3 We must bear this in mind, for manj- of
the eases cited are from states where the "heirs" take real
estate but the personal estate is distributed to the "next of
l:in " according to tho statute of distribution.
In Tillman y. Davis, 95 N. Y. 17, the court say "the primary
meaning in the law of the word 'heirs' is tho persons related
to one by blood, who would take his real estate if he died in
testate. The proper prima- signification of the words 'next
of kin' is those related b3' blood who take the personal estate
of one who dies intestate." Tho decisions in New York State
are to the effect that a widow is neither an "heir" nor "next
of kin" to her husband. It is held in England that b3" the
words "heirs of her late brother J. S. was meant the next
of kin of J. S. according to the Statute of Distributions, to
gether with the widow of J. S. if living at testatrix's death."
In re Stecvens" Trusts, 15 Eq. Cases L. R. 110. In the fol
lowing cases the word " heirs " when applied to personal
property means " those that by the Statute of Distributions
take the personal property in case of intestacj, and hence
Eby's Appeal, S4 Penn. St., 241.
Sweet v. Dutton, 109 Mass., 589.
Welsh v. Crater, 32 N. J. Eq., 177.
Collier v. Collier, 3 Ohio St., 369.
Laveiy v. Egan, 143 Mass., 392, bears a
the one at bar.
A testator b3- his will gave to his four grandchildren ccv
tain estate during their lives in equal shares, "and when thej
shall respectively decease to their respective heirs, execulrs,
administrators aud assigus." One of tho grandchildren Susan
died intestate leaving a liusband Held that under the i.tat
ute of 1880 (Pub. St. 124, 1) her husband took her one
fourth interest. The court sa- that b3r the statute "the hus
band or wife takes an estate in fee precise- as an heir takes,
and we think they are to be considered as statutcfry heirs."
"Although in the case at bar the heirs of Susan do not take
from Jier b3 inheritance, but take as persons designated by
close analog3" to
by law would have inherited the estate from her (Susan) if
she had died seized of it and intestate.
We adopt this reasoning. We know o no wa3 of ascer
taining who James Robinson intended by the "heirs of John"
except b3 ascertaining who would inherit John's estate if he
had died seized of it and intestate. This same construction
was put b3 Judcre Coole3' on the word "heirs" in Hascall y.
Cox in 40 Mich."435.
Wo therefore answer the last question in the submission
make it iie'ceVs-a to adopt the rule in Shelly's erase aiid thus
Honolulu, February 17, 1892.