The Hawaiian gazette., 1873-04-09

1
or personal, with all evidences Of debt, demands
chooses in action and other property Of every
name and nature" and to authorize the assignee
TO collect all claims, demands, chooses 10 actor
and property" for the purposes named in the
deed. have no doubt that this instrument il
legally sufficient for the purposes therein named
and that the assignor's income from hrs fathers
estate may thereby be collected by the assignee
in like manner as the assignor himself could have
done.
See Storys Contracts, 376, %. and e.) Par
sons Contracts, ch. Ia Burrills Assignments
Oh. 6.
A valid trust was created By this will, 1 think,
Notwithstanding that the words trust or trustee
never mentioned.
"All the books which treat of the construction oil
wills constantly repeat the formula that the nten-
ton Of the tesator is the prevailing consideration
in applying all rules of construction. This will be
found repeated an infinite number OF times in the
American reports" "And the general intent over
rides all mere technical and grammatical rules OF
construction"
Redfeld pages 1872 So and 81 and cases there cited.
at was said by Lord Eldon, that the word trust
not being made use of lis a circumstance to be at
tended to- but nothing more; and If the whole frame
of the will creates trust for the particular purpose
Of satisfying which the estate is devised the law is
the same though the word trust is not used"
Hill page 10l and cases there cited See also Jar
man on Wills. levin on Trusts page 1z9, and cases
there cited.
In fact the creation of the trust as to the person
atty Is admitted by assignees counsel and the ques-
ton is only raised in regard to the realty. Clause
III of the will gives to Owen j. Holt Zone. quarter
of all my estate both real and personal the income
Of the same to be paid to him by my executor" etc
This is not an absolute gilt, but gin coupled with
the condition that the executor shall paw 10 the
donee the income thereof"
In applying the above rules of construction for
eI.f a1au g
could, with the words he used TO express his wishes
have meant and intended any distinction between
his real and personal property. That the fifth clause
of this win makes different provision for a daugh-
ter does not change the intent of the third clause
the contrary, If any inference at all is to be drawn
from this difference 1t must be In favor of the trust
A valid trust is created by this will and the execu-
tor as trustee holds the legal estate.
The next question is: Can Owen J. Holt assign
his interests in bis fathers estate?
1t is argued that the manifest intent of this will
is consistent with rules of law and that this inten
tion would be thwarted by paying over all the iu-
come OF 0. j. Holt to extnguish debts already con-
traced. Clause three of the will provides that the
income of the same be paid to him by my executor
hereinafter named, for his and support for the
term Of his natural life, and AFTER" etc.
The question, whether trust to receive and apply
rents, etc, is synonymous with trust to receive
and pay over rent, etc, has oecasoned great deal
of discussion in the New York Courts, (Coster vs.
Lorrilard, Hawley VS.. James, Colt VS.. Cook and
Leggett VS.. Perkins, and although Ia the latter case
decided afirmatvely, 1t seems to that this deci-
sion made under the revised Statutes of New York
cannot be any authority for ue. We have here moth
ing in the shape of statute for guidance and must
therefore decide this question from the tenor of the
will only, and 1t becomes necessary to say whether
the tesator by the words used did give the executor
discretionary power to apply the income provided
for in the will, that is TO say to withhold It or any
part of it from the devisee careful consideration
of the words used does not give one the conviction
that the tesator intended any such discretion on the
part of the executor he certainly failed to express
clearly. l hold, therefore, that the gift to o. J.
Holt of the income of one-quarter is absolute and
consequently assignable.
Story Equity Jurisp 2, 1914.
Thus where testator bequeathed an annuity to
his son, the annuity being declared to be for his
personal maintenance aud support during his life,"
land not on any account to be liable or subject to
the debts ofthe sou, but to be paid to him and no
other person whatsoever the annuity passed TO the
assignee's in bankruptcy of the son. For it was
said that the policy of the law does not permit pro-
perry to be SO limited that it shall continue in the
enjoyment of the bankrupt Notwithstanding the
bankruptcy. The testator might have made the an
nuty determinabe on the bankruptcy. But while
it the property of the bankrupt It must be SUBJ
ect to the ordinary incidents of property aud there
fore subject to his debts"
The question to be asked in these cases is: On the
decease OF the cestUi qe trust would his executor
have right TO call upon the trustees respectively
to account for the arrears? If he would, then the
assignees are prospecivey entitled to the payments
in future
In Brandon VS.. Robinson, IS vcsey 429, the tesla
tor directed that the share Of his T. G. should
be laid out in the public funds by his trustees &C.
during his life and that the dividends, interest and
produce thereof as the same became payable and
due, should be paid by them from time to time into
his own proper hands, or on his proper order and
receipt subscribed with bis own proper hand, to the
intent that the same should not be assignable by
way of anticipation of any unreceived payment
thereof-and that upon T. Gs decease, his said share
should go to his heirs.
Eldon, L. C. "Thereis no doubt that property may
be given to a man until he shall become bankrupt
1t is equally clear, generally speaking, that if pro-
perry Is given to man for bis life, the donor can
not take away the incidents to life estate;"-
us quite different from an attempt to give him
for his life with provso that he shall not sell or
alien 1t. If that condition is so expressed as to
amount to Limitation, neither the man nor his
assignee can have it beyond the period limited"
" If personal receipt is In the construction of this
Court necessary act, 1t is very difficult to main
tain that If the bankrupt would not give a receipt
during his life, 1t would moi be assets for his debts
1t clearly would be so."-The reasoning of Turner
Vice Chancellor, in Rockford vs. Hackman, 10 Eng.
lish L. and Z. Reports, 81 ct seq See also the rea-
soning of the Chancellor In HaIlet VS.. Thompson,
Paige, 543
Hume VS.. Tenant, l Lead. Cases, 54l aud $40
In Ames VS.. Clarke, LOG Mass, 573, Wells, J.,
said: The annuity vested absolutely In Clarke As
vested right it was assiguable without words ex-
pressly making it so in the terms of the bequest.
In Palmer ct al vs. Stevens ct al Is Gray, 34S the
Court held under similar devise, the dcvsees right
and as much subject to his disposal any other in
ierest in property.
In Perkins VS.. Hays, Gray, 400, the Court said 4:
The estator intended this sum of $1,000 for the use
and support of his wife during her life and Of his
children during their minority, and the assignment
was declared void.
Has Owen j. Holt assigned, by the terms of the |
deed quoted, his interest in the income from his |
fathers estate? is the the third and last question.
Deeds of assignment of all property ain the |
schedule annexed mentioned" convey only such |
property as is mentioned in the schedue.-Burrill |
On Assignments, page 1885, ct seq.
But If there is nothing In the Instrument, or /
schedules annexed to it, to limit qualify its OPP
grafton, general assignment by a debtor Of all his
estate and effects will pass to the assignee every
hing which is in its nature assiguable.-Ib, p. S54.
An assignment of all the debtors estate and effects
will pass the interest Of the debtor devisee of
property, even though the property may have been
devised in trust, TO be conveyed to the debtor for
lis own proper and without being liable for his
p. $50; Ilallet vs. Thompson, 5 Paige,
'SS; Comstock, 397
No Statute controls these doctrines here, and 1
must therefore hold that the assignment of Owen j.
Holt to f. H. Harris conveys the said Hollis in
crest in the income from his fathers estate.