The Hawaiian gazette., 1873-04-09
HONOLULU,

l uOlu SET Will
Jarman says, fvol /, $50, Technical
language, of course, is not necessary tc
create a trust. 1t is enough that the in
tention is apparent" By the common
law the trustee must apply the trust fund
according to the instruction of its author.
There has been great conflict of opinion
on the question of trusts, and Redfeld
SAYS, Il vol 7o2, S'that no one feels any
confidence in relying upon any decision
in regard to trusts, unless it has been very
recently made, or else many times recog-
nized in the later decisions of the Courts
What was the intention OF the father
when he vested the title of the property
in the executor as q trustee, and directed
him to pay the income for the use and
support of his son Was 1t not clearly his
intention that the estate should remain in
tact, and that payment should be made from
time to time TO the son, rs NAV be neces-
sary for his support In the case of Leg
gett rs Perkins. the Court say, " 1t is
said that if q person is competent to take
care of the money when paid over, there
is no reason why the estate should not be
transferred to him, out of which it is rais-
ed. But to be influenced by this sugges-
ton, we must not shut our ewes TO the
light of history and experience. Every
one knows that there are individuals IN
every society who are neither imbecile nor
prohigate, nor united with those who are
50, who could properly dispose of fixed
income, and vet who ought not, from pru-
dental reasons, TO control the capital out
r. --l..l :. = ,-,.-,s1 = FTfl,.-
applies with peculiar force to our own
people. They are generous, and hospita-
BILE. and liable to be misled by the design
ing and unprincipled. The Young are
often enticed into idle snd dissipated hab-
Its. and become entirely reckless of conse
quenees either TO health or property. To
guard against those evils and proPensities,
the father undoubtedly imposed the re-
strietions contained in the IciR, which ex-
hibited q wise foresight as well as pa
rental regard for the happiness and indie
pendenee of his son. If, in this case, the !
beneficiary has the legal right TO assign
the income during his life, he virtually |
disposes of his interest in the property, /
and thereby defests the intention of his 1
father
In the case referred to above, and also /
in the case of Gott rs Cook, Il Paige, /
5SS,) ".great discussion has arisen as to 4
the force of the terms used in trust deeds, 1
and especially on the distinction in legal /
effect, between the words to pay over the
income to beneficiary or to apply it to
MS USE
The statute, as originally framed and
passed, authorized s trustee to receive the
'ents and profits of lands, and apply them
o the education and support of the bene-
iciary, or either of them. This was re-
,arded as too limited in its application,
md the word use was substituted, as the
evisers of the law said that the word use
Includes education and support, and also
,ther purposes which ought to be provid-
d for
The Chancellor says, " that the great
,bject of the Statute is attained, if the
property by means of the trust Is placed
'eyond the reach of those who might
quander the rents and profits in antici-
,ation, or might allow the property to be
aiken for previous debts"
Judge Bronson. in his dissenting opin-
On In this case, saws, "that the Statute
uthorizes trust to receive the rents and
rofts of land and apply them to the use
f anv person. but whether under this
rovision 3 valid trust can be created to
eceive rents and profits to pay them over
0 the beneficiary is a question which has
ndergone 3 good deal of discussion in
be books.
There is, in nv Judgment, q very plain
M substantial difference between the
iatute trust, to receive rents and profits
nd apply them to the use of another, and
lch trust as the testator has made, to
eceive rents and profits and pay them
yer as a debt due to another. In the
ne case the trustee has a discretion in the
pplicstion of the money, in the other be
as none.
& If the trust had been created in the
.ords of the Statute to receive and apply
snts and profits, or in any other equiva-
mt words, no one can doubt that the
-ustee would have had the right to con-
-ol the expenditure of the money.
g When the trust Is TO receive and ap-
" rents and profits, / have never met I
ith any judge or lawyer who denied that
lie trustee had authority to make the ap-
ication of the trust money"
By the language used IN the viii, when
le income IS to be paid over for use and
lpport, discretionary power Is vested
the trustee 1t Is not paymeRt only,
1t payment for the use and support Of
ie beneficiary. A Court of Chancery
Ill always protect a trustee who acts In
BOD faith and refuses to place the income
the hands of the beneficiary, to be
asted in dissipation or otherwise .
When the father gave to the trustee
lthority TO apply the income to the use
ID support of his son, was it not for the
~ purpose Of preventing the possibility :
bis squandering itg Had 1t been 8 life
tate, without limitation, over which the 6
.nefciary had the entire control, no such
nguage would have been used
/ am of opinion that q valid trust Is Gre
ed, and that the trustee is empowered TO
ceiye the rents and profits and apply
EN- to the use of the beneficiary, after
ey have been received him.
In the case of Ames US. Clark, (lO6
ass, SIS. the language Of the VIII is
at Hannah B. Mason gave to William !
ark, her brother, $500 annually, for his
e, to be paid by the executors In equal
Izrterly payments, with the further pro-
-5nv, 4ha< NJ, -,u-f Of tho haou1<t Sho771d I