The Hawaiian gazette., 1873-04-09
Supreme Court.
Econcrndsd from the first pagsl

apnlied to the support OF the benehclary
and not expended in dissipation.
In the csse of Palmer Us. Stevens, ia
GRAY, s4S,l similar language is used pay
ment was to be made on the sole receipt
Of the beneficiary. Both cases are clearly
distinguishsble from this case, and are In
conflict with the decisions in the case Of
Ieprett % Perkins. and Colt Us. Cook.
In the case of Perkins and another, y
GRAY. 1857 Executors Us. Hays and
others. It appears that the testator be-
oueatbed an annuity to his widow, to be
Maid TO her clear of all charges and deduc'
tions whatever during her life; or in case
Of her incapacity at any time by sickness
or otherwise, TO receive it, to any person
lawfully appointed to represent her; or IN
default Of such appointment, to be applied
by his executors to her support, and the
support and education of his minor chill
dren. Held, that the widow had no pow
er to ALLEVIATE any part OF the annuity by
anticipation"
The Court say that alienation by the
widow clearly exceeds any power OF DIS
position given by the will, and tends di-
rectly to defeat the clearly expressed pur-
pose and intention of the testator."
The analogy in the cases is peculiarly
strong. In the case cited, it is gift to
be paid quarterly, and on certain contn-
cencies TO be applied by the executors to
the support and maintenance of devisee,
and to the support and maintenance and
education of the testator's children.
In the case at bar it is devise OF GER
tain proportion of income to be paid for
the use and support of devisee.
The Court In the case cited says, that
the power OF alienation by anticipation is
inconsistent with and would tend directly
TO defeat the main object and purpose Of
the will The power is not given in terms.
A power NAV be implied to effect the pur-
poses of the testator, but never to defeat
Them
This is a principle In the construction OF
wills. and should never be disregarded,
for the purposes and intentions of the tes-
tator should be carried out. The power
Of alienation is not expressed in the case,
and It Is against all the authorities to i'm
plv it-more especially as it defeats the
purpose of the testator in applying the
income to the use and support of the de-
Tisee.
In the case cited the Court say, "that
because ii Is her separate estate, she has
the power of alienation by anticipation is
70 assume the question. 1t is only her
estate. subject 70 the limitations and re-
strsints imposed by the will 1t is sepa-
rate in this view, clearly, that 1t was In
tended for her use and support, and not
to pay the debts of Others" The Court
in this case were all of opinion that the
assignment by the devisee clearly exceed
ed the power given her by the will Any
other construction viii defeat the object
and purposes of the testator, when he
saws that the income shall be paid for the
use and support of his son during his nat
ural life
1t is very significant in showing clearly
the intention of the testator, that while
his devise to his son is limited, that to his
daughter is without limitation of one
quarter of his estate, both real and per-
sonal, and to her heirs and assigns.
The one has the income for life, for his
use and support; the ether has the entire
property without any limitation.
The law protects a parents intention IN
making a provision for child. 1t is a
noble purpose in parent to shield child
from want, and the law should aid In the
of this purpose, for when
estates are limited in the bequest the pre-
is that the testator had appre-
tensions lest the beneficiary might be I'M
provideut or injudicious in the manage
meut or disposition of the estate.
A parent has a right and it is his duty, |
If he has the means, to save his child from
the aims house to be supported at the pub
lie expense, and there is no other mode to
do It, than to provide an income from
some fund, OF productive estate, placed |
beyond his control.
Had il been the intention of the father
IN this case, to give the son life estate,
absolute. such would have been the Ian
yuage of the viii, but it is limited to the
income, to be applied to his use and sup
port during his natural life. This trust
which imposed upon the Executor the
iuty of paving the income for the use and
support Of the son, would be entirely de-
ieated, if the son had the power to ALLEVIATE
the income for his life.
But it is said, that such trust cannot
be sustained because 1t is a fraud upon
the creditors of the son.
This interest in his fathers estate was
natter Of public record, and every one
Inclined to give credit to the son, could
decide for himself his interest in the es-
ate, or wait till the Court had given
TO the will There can be no
raud where there is no concealment, and
any one has given credit to the son, he
lad the means, by which he could judge,
whether it was safe to give credit, or not.
To save improvident persons from squan-
lering their interest in property, is often
reason for a trust like this. But no
;reditor can properly complain who had
he means of knowing the precise pecuni-
nv situation of the son, as in this case,
o far at least, as it was affected by the
vii Of the father. Suppose, for example,
hat the son was insane, would 1t not be
he duty of the executor to devote ne
,essary portion of the income to his use
md support, probably in an insane asy-
am
In most cases, executors pay to the
beneficiary the income, periodically, and
hey use 1t as they deem proper, and
hould devote all in their power to pay
heir debts, but the fathers intention must
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