The Hawaiian gazette., 1872-07-17


er. The Court is clearly OF opinion
that not only it does not appear that
it is in addition to dover, but that 10 Us
clearly repugnant to the general pur.
poses Of the indenture.
Tue widow is always protected from
injustice by having the election Of the
provision made for her. OF of the en-
dowment, \ thorough examination OF
cur Code would frequently save coun-
sci great labor IN the examination Of
foreign authorities.
By the deed OF trust it is very clear
that the whole property therein de
lcrlbed. is conveyed for the benefit vt
Mrs. Booth and the children OF herself
and Joseph Booth. ltiSentire alienation
OF the property for that purpose and
therefore. John Booth the son Of "a for
mer marriage, has no interest in IL. The
conveyance expressly declares that the
said Pauoa premises are conveyed in
trust for the use and occupation Of the
said Joseph Booth and his wife Anne
Booth and their children as q family
homestead or residence. and after the
death of Joseph Booth. the same prop
erty is to be conveyed by the trustees
to Anne Booth in trust, as a family res
idence and home for herself aud child
rem. The Hotel premises are conveyed
In trust for the exclusive benefit OF An.
rS Booth aud the children OF herself
aud husband Joseph Booth, the purpoS.
eS of which are fully set forth in the
iudenture.
This indenture excludes title in any
one else save the parties therein espe-
ciallv named The Court is of opinion
that John Booth had no right of inner.
itance IN the property described in said
iudenture, and therefore, his wife Wa
hinealoha has no right of dover in the
premises.
This regard us the legal right of
the parties but it appears in evidence
that the trustees paid the sum of two
hundred and fifty dollars to John Booth
u relnquish his claim on the property.
so that If there was am equity in the
case, the said John Booth has had the
benefit Of it.
II ], alleged further, that Harriet
Charlotte Booth died subsequently, to
her luther. and while John Booth, her
half brother was living. aud that she
had interest IN the property in common
with her mother her brothers and sis.
tiers, limited To her support in the fam
lily. st least until the debts were paid,
which buve not vet been done He
was equally entitled with the children
of their common futher, to inherit an
interest in her estate. There isau equi.
" that his widow should have her
righttul portion with his brothers and
sisters.
What Is the proper portion of the
mother who holds this estate in trust
for the support of the children living
with her, IN view of the care and re-
sponsibliitv which she incurs? This
will be considered when the accounts
are rendered.
While sue has the entire control Of
the whole fund, she is responsible that
IT be expended for the common benefit
OF herself and children. but when they
become of age, aud marry, IL seems
reasonable that they should have snch
portion as would not iniure the pur-
poses Of making home for those who
do remain.
The claim Of Sarah Anne Phuger,
who Is the daughter of Joseph and An
ME Booth, and married, and who lives
separate and apart from the family, has
an equitable interest in the income
which was set apart for the support Of
the family.
Upon the issues made, it is the opin-
ion OF the Court that the condition in
the trust deed in restraint of marriage
does not work a forfeiture OF Mrs.
Longs interest IN the estate, and for
this purpose Is void, but the Court re-
CARDS as legal and reasonable. the condl.
ton in restraint Of marriage which de-
feats the continuance Of the trust, after
the debts, secured BY mortgage on the
Hotel premises, are paid, aud so adiudg-
e that the estate shall then be settled
giving Mrs. Long her one third, in
trust, for her life, and the heirs their
interests according TO law. Mrs. Long
had the right, under the Code, within
SIX months after the death Of her nus
band. 10 make her election whether to
avail herself of the pecuniary prOvis-
ion made TO her BY the trust deed, or
of her right of dover She did not
avail herself Of this right. and it is
barred by this omission. Mrs. Longs
interest, therefore, in the property, is
limited to the provisions Of the trust
deed.
an Of opinion that John Booth had
no interest AZ heir il the property CON
veyed in the trust deed at the decease
Of his father, and therefore his wife l.
not entitled to dover in the same. He
had right Of heirship in the portion
Of the property belonging 10 his sister
Harriet Charlotte Booth. deceased,
and that bis wife Wahinealoha Is emit
tied 70 one half Of that interest.
The PauOa premises we're dedicated
By the trust deed ~ homestead. but
as Mrs. Long has rented tue same, she
must account for the rent and profits
in the same manner a. for any other
income; but as there Is no evidence Of