Maughan's Will

Hartwell, J. : If, by the common law of England and the United States, the terms of the senior Maughan’s will would give a devisable interest, we have only to say whether the law of this Kingdom conforms thereto. This case has been presented amicably, to obtain the ruling of the Court; but as its decision must affect future cases, if it shall stand as the law of the land, we have not omitted to examine fully the authorities and principles involved. We have to aid us, in the first place, the elaborate opinion of his Honor, the Chancellor, in the Zupplien Will case. It was necessary, there, to decide whether an estate devised in trust for the widow and son during her life, and at her death, to the son and his heirs in fee, vested in the widow upon the son dying before her; it was held that the estate did not vest in the widow by lapse, but that at her death, the trustees must pay over the principal to the executors of the son’s will. [235] We think the opinion referred to, and the authorities cited therein, cover the present case, and correctly state the law of the land, to-day. Aside from other considerations, a ruling by a Justice of this Court, so long acquiesced in by the community, should have great weight. Minime sunt mutanda quce interpretationem certam semper habuerunt. “The great object in questions of property is certainty, and if an erroneous or hasty determination has got into practice, there is more benefit derived from adhering to it than if it were overturned. Many estates may be enjoyed under the authority of Coulsen vs. Coulsen, the titles to which would be shaken if the decision in that case were overruled. It is an established rule to abide by former precedents where the same points come again into litigation, as well to keep the scales of justice eveu and steady, and not liable to waver with each new Judge’s' opinion, as also because the law in that ease being solemnly declared and determined, that which was before uncertain and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent Judge to alter or vary from, according to his private judgments, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.” Per Lord Mansfield, in Hodgson vs. Ambrose, Hougl., 84. 'We cite the above for its excellent statement of the principles which govern the rulings of this Court, but which we are often urged by counsel to set aside. There are exceptions to the rule of stare decisis, but this is not one of them. The remainder fixed by Maughan’s will in his two children, upon the death of the widow, was created by the same instrument with her life interest, and was equally-vested, in interest, although not in present enjoyment. This bequest was absolute, and was not made on condition that the child survive the widow. If the survivorship of the child were intended by the testator as a condition precedent [236] to the vesting of the legacy, he should have said so, or given some intimation of .such intention by express words, or by limiting the estate over to some other person if the child should not survive. Van Wyck vs. Bloodgood, 1 Bradf., 172. Honolulu, April 27th, 1870. The gift is to the children by name, share and share alike, so that there is no joint tenancy or survivorship, but they hold as tenants in common. There was, at the testator’s death, a fixed right of future enjoyment of the property, contingent upon no uncertain event, for the widow was sure to die at some time, and not upon the legatee being personally ready to enjoy the property at her death. Even a contingent remainder may be alienated or devised, where the contingency is not in the person who is to take, but merely in the event, the person being ascertained. Wash., Beal Pr., 238. “ It is not important to the vesting of a legacy in remainder, that the legatee in remainder should survive the life tenant, since both interests vest at the death of the testator, and the legatee in remainder predeceasing the life tenant, only passes that'interest to the next of kin of him entitled in remainder.” 2 Redf. Law of Wills, p. 506. “No degree of contingency of an enjoyment in possession by the remainder man of the estate limited to him, affects the question of its being vested or contingent.” Ib., p. 242. 2 Wash. Rep. But to add to the- authorities cited in the Zupplein ease is unnecessary. If a testator intend that no benefit shall accrue to his children or their heirs, unless they survive' the widow having the life interest, he must in some manner express such intention. The will gave the son a vested interest, and his will, devising the same to his mother, must be sustained. Nancy Wirt, as .sole heir of the mother, is entitled to the son’s interest in the devised land, and Elizabeth Maughan Colburn takes her share under her father’s will. Let judgment be entered accordingly, the costs to be equally divided.