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As the court found that, owing to the willful acts of the respondents in the mandamus proceedings, by concealing themselves to evade service of process, the court below, for the purpose of preventing a failure of justice, prescribed for a service which is in effect the same as is authorized by the statutes of Missouri. Equity rule 13 (198 Fed. xxii, 115 C. C. A. xxii) authorizes such service of subpoenas in equity, even if there is not willful evasion of the service of process. Therefore, even if the state statutes had required a personal service, and none other, it would not be binding on the national courts.

In construing section 918, Rev. St., it has been held that a summons made returnable according to a rule of the federal court, and not in conformity with a changed state statute, is proper. Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602; Boston & Maine R. R. v. Gokey, 210 U. S. 155, 28 Sup. Ct. 657, 52 L. Ed. 1002. In Van Doren v. Pennsylvania R. R., 93 Fed. 260, 269, 35 C. C. A. 282, 290, the court, in reply to a contention that the national courts must, under section 914, Rev. St. (the Conformity Act, Comp. St. § 1537) follow the practice of the state courts in which it is held, said:

"The Circuit Courts are not bound to conform to state practice or pleadings in subordinate details where such conformity would result in gross or substantial injustice to litigants."

It is not even claimed that he had no notice of the granting, issuance, and service of the writ in conformity with the order of the court. In view of these facts, we are of the opinion that the order of the District Court for the service of the writs was authorized by the laws of the United States, and the service was sufficient.

[4] It is next claimed that the judgment awarding the peremptory writ is absolutely void, as the general law of the state, in force when the bonds, upon which the relator's judgment was based, hereinbefore quoted from General Statutes of Mo. 1865, limited the tax, which may be levied for railroad purposes in any one year, to 30 per centum of the subscription made by a county, and the writ, which the plaintiff in error was charged to have disobeyed, commanded a greater levy than 30 per cent. of the subscription.

Although there was no express provision in the act, by authority of which the bonds upon which relator's judgment is based were issued, to levy a special tax for their payment, it has been conclusively determined by the Supreme Court in actions arising under acts of the state of Missouri, containing the identical provision found in this act, that the power to tax is necessarily an ingredient of such power to contract. Ralls County Court v. United States, 105 U. S. 733, 736, 26 L. Ed. 1220; Scotland County Court v. United States, 140 U. S. 41, 45, 11 Sup. Ct. 697, 35 L. Ed. 351. The fourteenth section of the act provided:

"It shall be lawful for the county court of any county in the state to subscribe to the stock of said company, and for the stock subscribed in behalf of the county may issue the bonds of the county to raise the funds to pay for same, and to take proper steps to protect the interests of the county."

In the cases cited it was held that such a provision carried with it the power to levy a tax to pay bonds issued thereunder.

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[5] Assuming that the special act, under which the bonds were issued, is subject to this general act (but see Bunch v. United States, 252 Fed. 673, 679, C. C. A., decided by this court, Sept. 2,

1918) the contention is untenable.

When the first peremptory writ of mandamus was issued in 1912, it only commanded a tax levy to produce $70,500. The county court disobeyed this mandate. Thereupon another petition for a mandamus was filed in 1913, alleging that fact, and asking for a peremptory writ to compel the levy of a tax for the two years, for $70,500 each, or a total of $141,000. This was granted, but again the county court refused to levy any tax, as commanded. When in 1917 the relator filed the third petition for a mandamus, he set out the failure and refusal of the county court to levy the taxes as commanded for the years 1912 and 1913, and prayed for a mandamus, commanding the county court to levy in the aggregate sum of $211,500, to make up the amounts, which should have been levied and collected in obedience to the writs issued in 1912 and 1913, and to be levied for the year 1917, and the court granted this prayer of the petition.

In East St. Louis v. Amy, 120 U. S. 600, 604, 7 Sup. Ct. 739, 741 (30 L. Ed. 798), the same question was involved, except that no writs of mandamus had been issued therefor, and the court held:

"The law required a tax to be levied annually sufficient to pay all interest as it accrued, and the principal when due. This was neglected, and conse quently there is now a large accumulation of a debt which ought to have been paid in installments. Thus far the inhabitants have been allowed to escape taxation at the times it ought to have been laid, and to which they were under constitutional obligations to submit. The accumulation of the debt was caused by their own neglect as members of the political community which had incurred the obligation. Such being the case, we see no reason why it was not in the power of the court to order a single levy to meet the entire judgment, which was all for past-due obligations. Whether such a tax would be so oppressive as to make it proper not to have it all collected at one time was a question resting in the sound discretion of the court in ordering the collection. There is nothing here to show that there ought to have been a division."

To the same effect are Hicks v. Cleveland, 106 Fed. 459, 465, 45 C. C. A. 429; Padgett v. Post, 106 Fed. 600, 603, 45 C. C. A. 488.

[6] Again, if the court erred in requiring too large a tax levy, the error could only be corrected by writ of error, and not by a collateral attack on the judgment, as is attempted in this proceeding. Bunch v. United States, supra, where the authorities are collected.

The judgment is affirmed.


(Circuit Court of Appeals, Ninth Circuit. February 3, 1919.)

No. 3042.




A devise of land in Hawaii to a woman and her husband, "and to the heirs of the body of either, * * upon default of issue the same to go to my trustees upon the trust below expressed," held to use apt words to create an estate tail, but, since such estate cannot exist under the law of Hawaii, to vest the devisees with an estate in fee simple.


A settled rule of construction of conveyances and devises in the territory of Hawaii must be accepted by the appellate court, in a case coming from that district, as persuasive, if not of binding force.

Ross, Circuit Judge, dissenting.

In Error to the Supreme Court of the Territory of Hawaii.

Action at law by Helen K. Kinney against the Oahu Sugar Company, Limited. Judgment for defendant, and plaintiff brings error. Affirmed.

David L. Withington, of Honolulu, T. H. (Castle & Withington and W. C. Achi, all of Honolulu, T. H., of counsel), for plaintiff in error. Frear, Prosser, Anderson & Marx and Thompson & Cathcart, all of Honolulu, T. H., and Frederick W. Milverton, of San Francisco, Cal., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

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 I 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."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

In a codicil the testatrix provided as follows:

"I revoke so much of my 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 hornbook 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 ex

pressions 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, în 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 it 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


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