The Hawaiian gazette., 1873-04-09

there will be nothing in the hands of The
executor, to carry out this purpose of sup
port for the son.
The interest in that portion of the es
tate which the executor leased to Over
Jones Holt is assignable and its value
should accrue to the benefit of his credit.
ors; subject, of course to the conditions
of the lease.
Should the income as demised, be Of
larger amount than is necessary for the
use and support of the beneficiary, a Court
of EQUITY would award the excess, from
time to time, for the benefit of his creditors.
HARTwEL1a j.:
The case submits the following questions, viz:
| a. Whether the Administrator holds the legal
estate in the testator's lands. ~ Whether the
income payable to o. J. Holt under the will is st
his own disposal or Its use is determined by the
Administrator. (3) Whether the deed of assign
ment is sufficient to assign 0. J. Hollis income
if it be at his disposal.
l. The indenture reci.es that by written con-
sent of 0. j. Holt the Executor of the Will
bought at public auction the lands which are ad-
mitted to include those in question for the benefit
of the legatees and afterwards leased them to o.
%. uOlb duu duOAneIf WuUcc luleIocb W. u E1Oll
has since bought, for life. This lease is admitted
to be in full force, and is conclusive on o. ].
Hollis right subject to the assignment, to hold
it according to its terms for the Executor therein
expressly covenants for himself and successors
that the lessee shall have peaceable posses
sion without let or hindrance from him or them.
The lessor is thus estopped from denying the
lessee's right under the lease. and the lessee is
estopped from denying his lessons right to give
the lease, since it does not appear that the action
Of either party was produced by imposition or
taken under misapprension Of his rights.
g In regard to the Administrators authority
to direct the application Of the income payable
to o. ). Holt the Will itself, the only source of
such authority, must speak. 1t is agreed that
the Administrator holds the principal of the per-
soDal property for the heirs. using the income to
pay the widows annuity and for the use and sup
port of the testator's sons 1t is only in regard
TO the sons income that we have to inquire.
1t Is first to be observed that the will provides
for no accumulation of income not used or re-
qured for the widows maintenance and sup
port" or the sons use and support" and gives
no express power to the Executor to determine
what is requisite for these purposes or to with
hold any portion Of the income if he thinks it
not requisite for the purposes named; that the
widow and the sons are the only persons interest
ed in their respective legacies of income and
that the will peremptorily directs the Executor
to PAY oUer the income to them for the above
named purposes. If the legatees have absolute
control of their income after its payment and the
Executor have no authority to withhold it on the
ground that he fears it will be wasted, then they
may authorize any one to collect it as it becomes
due and payable.
A tesiator may secure the principal fund of
-. 80 .rNn g. h. ba,r of
he has done in this case or he may leave money
for mis- children to be expended for their benefit
at the discretion of bis Executor, without giving
them any control over it. Such provisions are
common in cases Of profigates, persons incapable
of managing their own affairs, children and mar
ried women. But such restrictions on the use
and enjoyment Of legacy If not made by Statute,
must be based on clearly expressed language in
the will, and is not inferred by mere statement
in the will OF the testator's object in giving the
legacy Such / understand to be the English
and American law. 1t is a view based on the
consideration, that provision for the exclusive
benefit Of donee, with no direction to use it
for any other purpose is an absolute gift subject
to all the incidents of ownership, and that all
conditions Tepugnant to the full enjoyment Of an
absolute gift are void, since Of two clearly ex-
pressed but inconsistent intentions Of the testator
ludb Ouc ulueJ 10 subordinate " iuO
main intent II a testator clearly say that money
devised for the benefit of Others shall be expend
ed by trustee for them. and shall not be at
their own disposal, the direction must be follow
ed. unless it conflict with other more important
directions. or with rules Of law. Bot Courts do
not make wills, or place any unusual meaning on
the words Of testator
In this will, drafted as counsel say by an expe-
rieuced attorney-at-law the testator directs that
the income be paid to his sons for their use
well as support and fails 10 give the Executor
discretionary power to determine the nature of
the use or 10 withhold the money If not used for
support.
know no cases, except under the New York
Statutes, which authorize the executor under
such a will to direct the manner in which the
income shall be expended, or 10 refuse its pay
meut if he thinks it will not be used for support
The New York Legislature has swept away the
old rules Of English Equity concerning trusts, by
enacting that none shall be valid except those
enumerated in their Statutes. One Of their stat
utorT trusts is. to receive the rents and profits
Of lands and dpplg them 10 the use of any per-
SON" Their Statutes declare that the person
beue6cially interested in such trust. " can not
assign or 10 any manner dispose Of such interest"
i n. Y. Rev St., p. 728, sect. IS. For many
years the New York Courts discussed the ques-
tion whether trust to 8 pay oDer " was the same
under their laws with trust to apply 10 fbe
ssss.r-Coster vs. Lorillard, Il Wend., 329; Haw-
ley vs. flames, l6 To-, l57; Gott vs.. Cook. Z
Paige, 534 Leggett vs.. Hunter, 2 n. Y, BOG
Leggett VS.. Perkins, Is To-, 454; Noyes vs..
Brakeman, ID, 5sI. These cases were argued
by eminent counsel. the first two filling three
hundred and sixty-seven pages Of the Reports.
The case Of Leggett vs.. Perkins, which was con-
sdered as settling the point. was decided by only
one vote in the majority, and that vote as Mr..
Justice Bronson 10 his dissenting opinion says,
was based on decision which be verify believ-
ed had never been made" The fact that so i'm