The Hawaiian gazette., 1873-04-09


code of New York, is fair ground Tor the vie7
which entertain, that trust to 81 pay 0reT 9
specified sum for the use and support Of another
is by rules of law and Equity not the same with
a trrst to opplv the same for that purpose and
especially that in the absence OF statutory pro
hibition, or of clear words Of restriction in the
will, beneficiary under q win is not restrained
from disposing Of legacy by the expression thai
it is " for his use and support when no powel
is giveG to the executor to determine the pro
priety of the expenditure.
A test often applied to determine whether {
legacy is vested, is to consider whether on the
death of the legstee any unpaid portion would
20 to bis personal representatives, or to the re
sIduary heirs named in the will In the former
case. the legatee has vested interest in the
legacy to use as he wishes. and in the latter case
an interest contingent on his using it for the
purposes named in the will. | think this viii
fails to show that any portion Of 0. j. Hollis
share Of income would 60 to the residuary heir;
named in the will will now refer to the Eng
lish aud American decisions and views Of text
writers on the subject.
AN express and positive devise can not be
controlled BY the reason assigned."-ll Jarman I
Rules for Construction Of Wills approved by
Red6eld in his work on Wills, vol. l, p. 425
Thus money given to purchase ring, or az
annuity, or horse, TO set one up in business, oil
for his maintenance and education, was in each
case held to be an absolute gift and not to create
trusts for the particular use."-l Redfeld's Wills
T0S, citing the English decisions.
The rule is to be sure not applicable when the
trustee has a discretion as to the amount to be
applied, or when Others besides the first donee
are intended to be aided but neither of these
conditions exists in the present case.
There is a considerably numerous class oil
cases where the bequest has been held to vest
an absolute title in the donee and the expression
by the testator OF the purpose and object of the
gift has been held merely descriptive Of the mo-
tive of the testator in making the gift. Such
are the gifts to father, the better to enuble him
to provide for his younger children, towards the
maintenance, education, and bringing up Of the
dOnees children TO enable the donee to assist
the children of his deceased brother; to enable
the testators wife to support herself and her
children at her discretion. 7l2. The gift
Of the income and annuity in this case seems to
me to come within the above-named class.
In a recent English case, devise to the tesla
tors widow for the benefit of herself and family,
was held 10 be an absolute gift to her, the Vice
Chancellor, Sir R. Malns, saying: am bound
TO say that the modern decisions tend-and
think most reasonably tend-not to fetter this
kind of discretion. The widow might give to
the family if she thought proper, bat she was
under no obligation to do so."-Lambe vs. Eames,
10 Eng. Equity, go, Qs70) If the testator de-
wise that his beneficiary alone shall have the
benefit of funds, and that no right over them
shall extend to creditors or purchasers, not only
must he clearly state such intention, but pro-
vision should be made for disposition of the
funds if not so needed or used by the beneficiary,
or if be attempt to ALLEVIATE them contrary to the
conditions Of the bequest.-See Redfeld's Wills,
669.
Upon the principle which forbids the dis
position of property Invested of its legal Incl
dents. 1t is clear that no exemption can be Gre
ated by the author of the gift from its liability
to the debts of the donee, and that property can
not be SO settled as to be unaffected by bank
ruptcy or insolvency."-l Jarman on Wills, 6S4.
In Brandon VS.. Robinson, Is YES, 429 Lord
Eldon, Chancellor, says: d" Generally speaking, if
property be given to man for his life, the donor
can not take away the incidents of life estate.
The old way Of expressing trust for married
woman was, that the trustee should pay into her
own proper hands and upon her own receipt only,
yet this Court always said she might dispose of
that interest, and her assignee would take it."
In Perkins VS.. Hay. Gray, 4O6. the testators
widow was not allowed to assign her interest in
an annuity. But the will ITSELF in that case, ex-
pressly provided that the legacy for the widow
should be By them 1.-THE trustees,) applied to her
support and maintenance" and also provides for
the disposition by the trustees of all accumula-
tions on the capital sum.
In Graves vs.. Dolphin, Sim. &c, cited in Jar
mans Wills, 6Ss, testator directed trustees to
pay his son an annuity for bis personal mainte-
nance and support" and that it "should not on
any pretence whatsoever be subject to the debts
charges or membranes of his
said son, but that the same, as it became payable
be paid over into the proper hands of him the
said son and not to any other person or
persons whomsoever." Held, Shadwell, vice Ch.
that the annuity passed to the sons assignees in
bankruptcy.
And the vesting in trustees of discretion as
TO the mode in which income is to be applied for
The benefit of ceStui que trust does not take it
out of the operation of bankruptcy or insolvency,
10 effect which, the discretion of the trustees
must extend not merely to the manner of apply
ing the income for the benefit OF the cestui aai
rust, but also to the enabling of them to apply
It either for his benefit or for some other p0r'-
pose" Jarman's Wills, 6S9.
In Palmer vs.. Stevens, Is Gray, 343, money
was devised in trust to the testator's son, for
he comfort, support and education of himself
Ind his children and after his decease to pay the
same to his heirs at law The son assigned this
interest, and the assignment was contested, Ru-
us Choate and 81. F. Durant being counsel for
he contestant. The Court, By Hoar, j., held,
hat the assignment was valid, saying, "his right
% the income annually is complete, and absolute.
ind as much subject to his disposal as any other
interest in property"
And see Hume vs.. Tenant, and Notes, Lead.
ng Gases in Equity, 542.
A testator devised property to his grandchil-
lren, directing that it should not be divided
lmong them until after the death of his daugh-
ers The Court said " This restriction is clearly
epugnant to the absolute and unqualified gift al
eady made and is imperative and void. So are
Ill the postponements and prohibitions of the
light to SELL cucumber or divide the testator's |
property contained in the will They are repug- |
ant to the estate given and must therefore fall"
.ovett VS.. Gillender, IS n. Y. 62s. In Ames VS.. |
Clarke, log Mass, 5T3 Q87l) testator be-
ueathed an annuity in trust for her brother for |
ife directing that no part Of it should be liable |
or his debts. The devisee assigned the annuity, |
nd the assignment was disputed on the grounds
hat the devisee was incapable of supporting him
elf for many years, and had made the assignment
without the knowledge Of those who were con-
ributing 20 his support. The assignment was
ustaned, the Court, by Wells. j., saying, "The
nnuity vested absolutely in WIN. Clarke, (the
evisee), As a vested right it was assignable,