The Hawaiian gazette., 1873-04-09
OPINION OF CHEF JUSTICE ALIEN, DIS.
sENTING FROM THE JUDGMENT OF
MAJORITY OF THE CoURT.

SENTING FROM THE J JUDGMENT OF A
MAJORITY OF THE CoUKI
This is s case of submission under the
Statute, by F. H Harris. Assignee Of
Owen Jones Holt, and a F. Judd, Ad
miuistrator with the viii annexed of the
estate of Robert W Holt. deceased
Ii appears by the submission, that Owen
Jones Holt made an assignment of all his
property, for the benefit OF his creditors,
10 F. a. Harris, and by force of which be
claims all the interest In the estate which
was bequesthed TO him by Robert W.
Holt, by his viii.
On the contrary, it Is claimed by the
Administrator that, by the Will, he Is ere
ated S trustee TO hold said real and per
sonal estate thereby devised and bequeath-
ed, and to pay over one-iourth of the net
rents, issues and profits of the said estate
to said Owen Jones Holt during his life,
for his use and support. with remainder to
the heirs of said Owen Jones Holt and
their assigns, and that said life interest is
not alienable or assignsble, and not liable
for his debts.
By the viii bequest is made by the
teStator for the term Of the natural life of
his wife Of the sum Of $500, TO be paid TO
her yearly in quarterly payments Of $500,
by the executor. And bequest Is made
70 Owen Jones Holt Of one quarter Of the
estate of the testator. both neal and per
sonal, the income of the same TO be paid
TO him bv the executor for his use and
support for the term of his natural life,
and after his death there is an express
bequest of the said one-tourth part of the
estate to his heirs and their assigns.
Jarmzn saws: There is no principle of
law more generally admitted than that
the intention of the testator should be car
red out No degree of technical inform
ality or of grammatical or photographed
error. nor the most perplexing confusion
IN the collocation of words, or sentences,
viii deter the Judicial exPositor from dill
gently entering upon the task Of eliciting
from the contents of the instrument the
intention of the author. the faintest traces
of which viii be sought out from every
part of the viii, and the whole carefully
weighed together. Smith vs. Bell.
Peters. les; Hona VS.. SHELTON. Met,
le4; Morton vs. Bennett, % Maine, 257
Butler, Justice, IN the case of Hodgson
VS. Ambrose, Douglas, SO, SAYS: If
the intention Is apparent, know of no
case that says that a strict legal con-
struction, or a technical sense of any word
whatever, shall prevail against It .
1t Is very evident that the first obhga- /
cation of the executor imposed by the
VIII, Is TO pay the testator's wife $500
per annRm during her life, in quarterly
and the whole property IS held
by him in trust for that purpose.
I'd Il Is made the duty Of the executor
10 pay to Owen Jones Holt, son of the 4
testator, the income of one-ouarter part of
this estate demised for has use and sup
port during his life, and bequest over to 1
the heirs of said Holt
The instrument might have been more
explicit IN declaring the duties Of the ex-
ecutor, but they are clearly implied. 1t
Is very clearly bis duty, therefore, to take
charge of the estate and manage and i'm
prove II, and collect the rents on the real
estate, and the income from the personal
interest on notes and mortgages,
DC. &c.
In the celebrated case of Leggett Ct AZ
rs Perkins. (New York Rep, 2 vol 297,) !
testator gave two-ffths Of his real estate
to his two daughters, 50 that each might
have and enjoy the income Of one-hfth
during their lives, and on their death their
shares 10 90 to their issue. He appointed
executors and constituted them trustees,
snd authorized and desired them to msn-
age and improve the estate, and TO pay
70 his daughters from time to time the in
come
The Court held that the viii vested the
legal estate in the trustees during the
lives Of the daughters; and. ID, that the
trust was valid
The testator provided further that the
net income should be paid 70 the daugh-
ters, after marriage, without the consent
Of their husbands The Court say, that
f the husband took an estate BY the cur
.esy. as he would if the fee vested N the
daughter, be would be entitled to the rents
md profits, and the separate provision for
he daughter would be totally inefectuaL- T"
No particular form Of expression IS re-
1uisite IN order TO create 3 binding and
rzlid trust. but It Is requisite that the tes-
ator should have pointed out with suf-
icient clearness and certzinty both the
subject matter and the object Of the trust