Kinney v. Oahu Sugar Co.

255 F. 732, 167 C.C.A. 78, 1919 U.S. App. LEXIS 1514

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 3, 1919
• Docket: No. 3042
• Status: Published

Opinions

GILBERT, Circuit Judge.

The plaintiff in error brought ejectment to recover the possession of certain land in the island of Hawaii, claiming title, as one of the heirs of the body of Kahakuakoi and Kealohapauole, who were devisees under the will of Bernice Pauahi Bishop, who died October 16, 1884, and also as the heir of a deceased brother. The devisees so named had three children, Niulii, George, and Lydia. Niulii died in 1900, leaving two children, John Paalua and Helen, the plaintiff. Kahakuakoi and Kealohapauole died, respectively, in 1910 and 1914, and John Paalua died in 1915. The defendant claimed title through the foreclosure of a mortgage executed by Kahakuakoi and Kealohapauole, under which the land was sold on January 28, 1893, and also under a deed from Kahakuakoi and Kealohapauole and their children George and Lydia.

[1] The rights of the parties to the action depend upon the proper construction of the following provisions of the will:

“I give and bequeath unto Kahakuakoi (w) and Kealohapauole, her husband, and to the survivor of them, the sum of thirty dollars ($30) per month (not $30 each), so long as either of them may live. And T also devise unto them and to the heirs of the body of either, the lot of land called ‘Mauna Kamala,’ situated at Kapalama, Honolulu; upon default of issue the same to go to my trustees upon the trusts below expressed.”

In a codicil the testatrix provided as follows:

“I revoke so much of ray 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 the 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.”

The defendant contended that the words “heirs of the body of either” are words of inheritance and not of purchase, and at common law would vest an estate in fee tail; that, since in Hawaii there can be no estate in tail, the estate so devised, in the absence of words to indicate a contrary intention, was a fee simple; that it was the intention of the testatrix to create by the devise an estate of inheritance and not a life estate and remainders; and that the words of the will and the codicil, together with the legal presumptions, tend to support the view that it was her intention that the devisees named should take title in fee simple rather than for life only. The plaintiff denied that at common law the devise would create a fee tail; that, even if the words of the devise were such as to create- a fee tail at common law, they are in Hawaii to be construed as creating a fee simple or an estate for life, with a remainder over, according to which of the two constructions will carry out more nearly the intention of the testatrix as drawn from the will and the surrounding circumstances; that the use of the words “of either,” and the devise over in default of issue, show the intention of the testatrix that the heirs of the body of either were to take an interest; and that, as they cannot take by descent, they must take by purchase, and that the estate created by the devise is a life estate by the entirety to the devisees named therein, with the remainder over to the heirs of the body of either; the presumption being that the testatrix intended to create a legal estate rather than an illegal one, a devise for the children of the devisees rather than a fee tail, which cannot exist in Hawaii, and that this construction is assisted by the use of the word “limited” in the codicil. In the Circuit Court a jury trial was waived, and the court found for the defendant, holding that the devise created a fee-simple title in the devisees named therein. On writ of error from the Supreme Court of the territory the judgment was affirmed. Kinney v. Oahu Sugar Co., 23 Hawaii, 747. That judgment is by writ of error brought before this «court for review.

From a careful consideration of the terms of the will we deduce the following conclusions:

First, the devise in question uses apt words to create an estate tail. It contains the requisite words of inheritance “heirs of the body.” “That these words, if alone considered, created an estate tail, is horn-book law.” Pearsol v. Maxwell, 76 Fed. 428, 22 C. C. A. 262. The presumption is that technical words used in a will have been used in their technical sense, unless a contrary intention clearly appears from the context. 40 Cyc. 1398; Pearsol v. Maxwell, supra; Nightingale v. Sheldon, 5 Mason, 336, Fed. Cas. No. 10,265; Shuttle & Weaver Land & Imp. Co. v. Barker, 178 Ala. 366, 60 South. 157. “Any expressions in the will denoting an intention to give the devisee an estate of inheritance descendable to his, or some of his, lineal, but not collateral, heirs have always been regarded as a sufficient devise of a fee tail.” 10 R. C. L. 658; Smith v. Pendell, 19 Conn. 107, 48 Am. Dec. 146; Hudson v. Wadsworth, 8 Conn. 348; Hill v. Hill, 74 Pa. 173, 15 Am. Rep. 545; Doty v. Teller, 54 N. J. Law, 163, 23 Atl. 944, 33 Am. St. Rep. 670. We find no ground to sustain the plaintiff’s contention that the word “either” in the clause, “and I also devise unto them and to the heirs of the body of either,” has the effect to convert the estate of the first takers into a life estate. These are words of limitation defining the estate given to the devisees. The word “either” relates to the inheritance only. It does not affect the estate of the devisees. It does not impose a superadded limitation, nor does it cause a change in the course of descent. It has to do only with the source from which the heirs of the body shall spring. Its effect is to create a fee tail general instead of a fee tail special. There is entire absence of words of separation or futurity to sever the estate of the first takers from that of their heirs. A case in point is Wright v. Scott, 4 Wash. C. C. 16, Fed. Cas. No. 18,092.

- A testator had devised lands to his daughter and to her husband, “to * * * their heirs begotten of their bodies, or assigns forever; or for want of such heirs or assigns, then to the heirs begotten by or of either of them.” Mr. Justice Washington said:

“Can it admit of a- doubt that the testator intended, in the first instance, to give to his daughter and to his son-in-law a joint estate in fee tail? * * * The words are, ‘to his well beloved daughter, and to her husband, J. W., and their heirs begotten of their bodies.’ The most unlettered man, however ignorant he may be of the difference between a fee simple and a fee tail, knows that the heirs of the body of the devisee cannot include general heirs, who are not of his body. Again, can it be doubted that the testator intended, in the event of the death of his daughter, or of her husband, without issue of their bodies, to give the estate to the heirs of the body of the survivor of them? * * * The expressions, ‘heirs begotten by or of either of them.’ have precisely the same meaning here that they have in the devise of the particular estate.”

Second, it was the intention of the testatrix to create an estate tail. The will and the codicils are drawn with meticulous care. The sole office of the codicil was to substitute one parcel of land for another, and if does not add to or take away from or explain the nature of the estate which had been devised, or make more clear the intention of the testatrix. The words, “to have and to hold as limited,” express only what had already been provided, that the estate should remain, the same as before defined, a limited estate, intended to be limited as an estate tail, an estate which is defined as a limited estate. “ ‘Heirs of the body’ are strictly and technically words of limitation.” Pearsol v. Maxwell (C. C.) 68 Fed. 513; Linn v. Alexander, 59 Pa. 43, 46. The testatrix knew how to express her intention. In appropriate and accurate language she made several devises of land to devisees during the term of his or her natural life, with remainder over. She also devised land in fee simple, “to have and to hold, with the appurtenances to him, his heirs and assigns, forever.” A significant fact is that the first codicil gives power to “all of the beneficiaries named in my said will and in this codicil to whom I have given a life interest in any lands, to make good and valid leases of said lands for the term of ten years; which leases shall hold good for the remainder of the several terms thereof, after the decease of said devisees, the rent, however, after such decease to be paid to my executors or trustees.” If the devise in question was intended to create a life estate in the devisees named, and they had made the lease which the codicil authorized them to make, the trustees, and not the children, would, under the will, have received the ensuing rentals. It is evident that the testatrix and Judge Hatch, formerly a Justice of the Supreme Court of Hawaii, who drew the will, were of the opinion that an estate tail could bó created in Hawaii. In the opinion of the court below it is said that tliis impression seems formerly to have prevailed. That such was the impression is further shown by the discussion in Rooke v. Queen’s Hospital, presently to be considered. The devisees also understood that they were tenants in tail. In 1890, six years after the death of the testatrix, they leased the land for a term of 50 years. They thought also that the entail could be barred by their deed, for iu mortgaging the land in 1890 they described it as the premises “devised to us by will of B. Pauahi Bishop,” and they conveyed the same “freed and discharged from any estate tail of us, and all remainder estates and powers to take effect after the determination or in defeasance of such estate tail.”

In nearly all the states of the Union estates tail have been either abolished or greatly modified by statute, being usually converted into estates in fee simple, in the hands of the first taker, or into life estates with remainders in fee. In two of the states estates tail have never been recognized, they having been deemed to be out of harmony with the genius, spirit, and objects of the state institutions. Pierson v. Lane, 60 Iowa, 60, 14 N. W. 90; Jordan v. Roach, 32 Miss. 481. On similar ground the existence of estates tail was denied in Hawaii, in Rooke v. Queen’s Hospital, 12 Hawaii, 375, decided in May, 1900. In that case the court gave exhaustive consideration to the question, and held that estates tail were never a part of the system of Plawaiian land tenures, and that the English system was never imported into the islands. Said the court: “We have no hesitation in holding that estates tail have no place under the laws of Plawaii.” It appears from the opinion that the question was stoutly contested, that six briefs were filed by the twelve counsel engaged, together with opinions by six persons noted for their learning in real estate law in England and in the United States, one of which was by Professor Gray of the Harvard Paw School, and another was by Sir Howard W. Elphinstone, one of the conveyancing counsel to the Chancery Division of the High Court of England. “These,” said the court, “arrive at diametrically opposite conclusions.” It appears, therefore, that at that time {lie belief was widely entertained that estates tail could be created in Hawaii.

The question of the effect of a deed which at common law would have conveyed an estate tail arose in the subsequent case of Nahaolelua v. Heen, 20 Hawaii, 372. A woman about to marry had conveyed to trustees land for her use until her marriage, and thereafter to pay the net income to her during her coverture, and, in case of hen death leaving issue, to apply the net income to the maintenance of such issue during minority, and upon the issue reaching majority to convey the land to them. After the birth of issue the trustees, in 1873, by a deed which recited the trust and the birth of issue, reconveyed to her, and “to the heirs of her body,” the said real estate, to have and to hold to her “and the heirs of her body forever. In special trust for the use and benefit of her said son, * * * and such other child or children as may hereafter be born to her.” As the court could not declare the estate to be an estate tail, there were but two alternatives, either to hold it a fee simple or an estate for life in the grantee with remainder to her children. In arriving at the intention of the parties to that conveyance the court considered “all the provisions of the deed, as well as the situation of the parties,” and said that the intent of the parties “would be most nearly carried out” by holding that the grantee therein took a life estate with a remainder in fee simple to the heirs of her body, and observed that the trust clause which followed must be disregarded as repugnant and contradictory to the formal parts of the deed. It is clear that the court, while denying effect to the trust clause as creating a trust, recognized its value as evidence of the intention of the parties, which very obviously was to make special provision for the welfare' of the issue of the marriage, an intention that would have been thwarted had the deed been so construed as to create a title in fee simple in the grantee. The two deeds manifest two purposes of the woman who owned the land, first, to place the land beyond the control of the man whom she was about to marry, and, second, to provide for the welfare of her children. In construing the second deed there was in fact but one intention to seek, that of the grantee, the grantors being her trustees and bound to do her bidding. In the present casé the court below, referring to Nahaolelua v. Heen, said:

“We reaffirm tlie rule made in that case that in this jurisdiction, when a futile attempt has been made to create an estate in fee tail, it will take effect either as a fee-simple or a life estate, and remainder according to which appears to more nearly effect the intention of the grantor or testator, and hold, further, that ordinarily it will be held to take effect as a fee simple unless something appears which should send it the other way.”

[2] We take that utterance of the court to be an expression of the settled rule of construction of conveyances and devises in the territory of Hawaii, and that rule we must accept as persuasive, if not of binding force in a case which comes to us from that territory. Boeynaems, Bishop of Zeugma, v. Ah Leong, 242 U. S. 612, 37 Sup. Ct. 20, 61 L. Ed. 527; Lewers & Cooke v. Atcherly, 222 U. S. 285, 32 Sup. Ct. 94, 56 L. Ed. 202; John Ii Estate v. Brown, 235 U. S. 342, 35 Sup. Ct. 106, 59 L. Ed. 259; Kapiolani Estate v. Atcherley, 238 U. S. 119, 35 Sup. Ct. 832, 59 L. Ed. 1229, Ann. Cas. 1916E, 142; and Cardona v. Quinones, 240 U. S. 83, 36 Sup. Ct. 346, 60 L. Ed. . Following that rule, we agree with the Supreme Court of the territory that in the present case nothing appears that “should send it the other way.”

The judgment is affirmed.