The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-05-06
VOL. X,---NO. IS.
supreme oour1-Aprn Term. 1sz4-1n Banco,

Il
This case is presented on appeal from the de-
cisiou of Judge of Probate, who admitted the
will, with the cOdicil Of His late Majesty LuBaIi-
10, to probate. The only question before us is as
to the validity of the will.
1t is admitted by the contestant that the
alleged will was executed as required by the
Statute Of the Kingdom.
1t is also admitted that at the time Of making
the alleged will the testator was under guardian
ship as a spendthrift, and that all the statutory
provisions had been complied with, and Mr.. Bish-
op, the executor named in the alleged will, was
one Of the guardians Of the teststor.
1t is couteuded that the will is void, because, at
its date the testator was under guardianship.
The counsel for the contestant argue that the Sec
ton 1853 Of the Civil Code must be read in con.
junction with Section 1854 and that the construc-
tion cOntended for is clearly within the spirit, if
not within the exact letter of those enactments
By Section 1863 it is declared that any person
OF full age and of sound mind, may dispose of
his estate both real and personal by will.
The restriction OF persons under guardianship
is not made IN terms, but 1t is contended that BY
virtue of Section 1850 the restriction is virtually
made, as by it he is restricted from making any
gifts sales or transfers Of real estate or personal
estate during the guardianship, and if he does,
the guardian can interpose and defeat them,
But the Statute gives the guardian no power to
restrain the operation of will which the ward
may make.
A Statute in derogation Of the rights of per-
sons must be construed strictly, and it is very evi
dent that the Legislature when they passed the
law that all persons of full age and sound mind
might make will, they did not intend to add a
restriction In a general law of guardians and
wards. The word gift has not in the Statute the
same meaning as lDiH, the one is a solemn instru-
meut, executed with great formality, while the
other is, to make it valid, by immediate transfer
Of the article.
1t does not follow. therefore, because person
is under guardianship as spendthrift, that be is
incapacitated to make will.
In the one case be is stimulated by his appe-
tite and passions 10 dispose OF his property for
immediate personal indulgence, and hence the
necessity for guardianship, while In the other he
makes disposition Of his property to take effect
after his death, and when the powers of his guar
dian terminate.
1t is very evident that the Legislature were Of
opinion that the power of the person over his
property in the former case was unsafe, while in
the latter, its exercise was proper, otherwise
there would have been a restriction in terms,
The ,o,,sai oonta,ds thar q mill cro,,os q .r,s.
and a trust is regarded as a gift or conveyance Of
the property, the subject of the trust, to the
persons who are its object, and therefore, the ca
paciiy TO declare trust is limited by the same
rules as the power of disposiDg of property at
law.
1t is very true that will may create trust,
but 1t must be executed according to the statute,
andif SO executed ii is not in the nature of
contract 1t differs from deed of trust, for in /
the one case it does not take effect till after
death, while n the other, TO make it valid, it
must be delivered in the life time Of the grautor,
who, being under guardianship is restrained by
Law from doing it. 49,. L \|A--
The counsel says " Suppose that the testator
had made deed Of glft in 1871 for a valuable |
consideration for advances, &c, TO take effect |
after death, such deed would have been con-
strued as a WILT has been so ruled,-would |
such gift have been valid under the Statute?"
1t is very clear that it would not have been, for
the reason that it would be In the nature of |
contract to pay for advances 10 the speudtbrift, |
to control which guardianship was imposed.
The counsel suggests another example. He |
says: Suppose in 1871 he had given bond to
A--consideration $4,000 or more, or sufficient /
for his extravagant ,expenditures-to execute
will in his I Asl favor, would the executor be
bound to pay the consideration ?" Most GER
tainly be would" says the counsel {" if he was
not incapacitated under the act of guardianship
from making such bond" The counsel has un-
doubtedy given a sound answer TO his question
but it is evident by the law regulating the guar.
dianship that the ward had not power to make
such contract, or any other contract, and there
fore the bond would be void
1t is always consolation TO have ones opin-
ions sustained by high judicial authority. In the
case OF Stsve, appellant, Us. Damon aud others, u
Mass, 4s7, the Court gave an opinion that e if
luudIiC uhueI guaIulausuip oe IesbOiSu W us Eea-
son. he may make will, aRhough-the letters of
guardianship are unrepealed." The same doc
trine was maintained by the sumo learned Court
many years afterwards in the case of Breed rs.
Pratt, is Pick, lis. The Court says that it is
an act msnifestly distinguishable from contracts
and other acts to be done inter Uiras, and in
wolves no conflict Of authority with the guardian.
(Sse Rei6eld on the Law of Wills, Part L, 134,
where the same rule Of law is recognizedl
Its the judgment of the Court that the de-
cree Of the Probate Court from which an appeal
was taken, be affirmed, and that the proceedings
in the case be RENTED to the same Court.
l. McCully, Esq for the executor, proponent
Messrs Stanley aud Preston for contestant
Honolulu, April 29th, 1874.
RELICS OF SIR JoHS FRANELIN.-The NeU
V,rl HS,.7l1 eou tains the statement Of n oa0tain