The Hawaiian gazette., 1874-08-05
HAWAIIANGAZETTE
Supreme Court OF the Hawaiian
Islands-IuIy Term. ISsA.

EUNy topper ana EHiilg yoARS0RS.
: In Equity. Submission without action unde
the Code. Opinion by Mr.. Justice Judd.
The following are the facts Of this case Al
taken from the submission:
William AlgernOu Cooper, Of Honolulu, IN the
Island Of Oahu, duly made his last Win and Tes
lament in writing, dated the 10th day Of July
1853, whereby, after reciting that the Testatol
was the owner Of one undivided Snoiety Of The
house and premises in Honolulu, called and
known as the Royal Hotel as teuan, in com
mon with Stephen Spencer. as also of the dwell
ling house, lot and premises called KalOkohonu 10
Nuunnu Valley, as occupied by the said Stephen
Spencer, with all furniture, stock in trade and
other ehatiels therein respectively, and also Of
certain other property in the said will mentioned.
The said testator gave. devised and bequeathed
all his properties to the plaintiff and the tes-
taior's brother. Stewart Hamilton Cooper. upon
trust (iRfsr ala out Of the receipts and prof.
its Of the said Hotel 10 remit and pay 10 my
father, Joseph Cooper now resident in Belfast in
ireland, an annuity Of four hundred dollars. or
eighty pounds sterling per auuum, during his nat.
ural life, and upon his deeease to remit and pay
ike annuity to my two unmarried sisters. Fanny
and Emily Cooper, 50 long as they remain single
and unmarried aud if one CT them shall marry
then to pay and remit the same annuity Of eighty
pounds per annum to such one OF them as shall
remain single and in case both Of them shall
marry then the said annuity TO cease
The said testator died on or about the sih day
Of August, 1859 without having altered or re-
voked the said will, which was daily proved in
this Honorable Court by the executors therein
named.
Stewart Hamilton Cooper, one of the execu-
tors, died on the 9Th day of July, 1873, leaving
the plaintiff, him surviving. Joseph Cooper. the
father Of the testator deceased some time since.
The annuity Of four hundred dollars was re-
mitted to the testatOr's sisters (the defendants
herein), until Emily Cooper intermarried with
and became the wife of one - tombstone.
when the Trustees RENTED the whole of the an
nuity to the defendant, Fanny Cooper, who still
remains sole and unmarried.
Mr.. tombstone, the husband Of Emily Cooper,
died on or about the = day Of November, 1873
The plaintiff having been advised that 1t was
doubtful whether he was Justified 10 RENTING the
whole Of the annuity 10 the defendant, Fanny
Cooper, requested the defendant, Emily John
stone, to authorize him to do So which the said
defendant hath declined to do. alleging that the /.
clause in the viii which deprves her of her share
10 the annuity, on marriage, is void as being 10 /
restraint Of marriage which allegation the defend
ant, Fanny Cooper, denies and claims to be euti-
tied to the whole annuity.
The plaintiff and defendants therefore submit
the matter in dispute to this Honorable Court,
and request its Judgment whether the defendant,
Emily JOhnstone, is entitled to receive one mole
ty of the annuity Of four hundred dollars
Wherefore the undersigned pray that the
Honorable the Justices of the Supreme Court
having appointed day on which counsel may be
heard, viii take the matters in difference above
set forth under advisement, and to render such
Judgment as to right and justice may pertain
By THE CoUET:
The question raised is whether the words of
he will, to wit, to remit and pay a like annuity
o my two unmarried sisters, Fanny and Emily
Cooper SC long as they remain single and unmar-
led, and if one Of them shall marry. then to pay
md remit the sane annuity Of eighty pounds per
mum to such Que Of them as shall remain single,
nd IN case both Of them shall marry, then the
aid annuity to cease, ought to be considered as
IMPOSING condition in restraint Of marriage, or
merely limitation until marriage.
There are 10 words 10 tins will prohibiting
marriage on the pars Of either Of the testator's
listers, either generally or With any particular
srsOns. The annuity IS payable to them so
ong as they remain single, that is, uHta they
ball marry. These words do not prohibit mar
iage, nor indicate in suy way the desire OF the
estator that his sisters should remain single; but
be viii merely provides for the payment Of the
nnuity SO long as they are presumed to need it
bat is. SO long as they remain single
1t is not necessary to review all the authorities
tied by counsel, for they are ably reviewed il
colt vs. Tyler, 2 Leading Cases in Equity. Do. 1
20 to 4l6
In Heath vs.. Lewis, fb. pp s9s). a testatOr
annuity to single lady during the
srm Of her natural life, If she shall 50 long re-
ain unmarried The Lord justices held this
} be limitation as distinguished from coadi-
90 and that the condition ceased when the lady
zrsied, and Lord Justice knight Bruce said ,
lat it is competent for man to give to SIN {
e woman so annuity until she shall die or be s
arried, whichever of the two events shall first
appen.' Z
In Webb vs. Grace Cd. PIP. s97), where there t
as an annuity with the proyiso that in case E.
. should at any time thereafter happen to marry
e annuity should be reduced from so TO $50. |
was held that E c.. having married, was emit
ed only to the reduced annuity. 7
The case At bar is stronger for there is devise q
Ter to the sister who remains unmarried Par c
ms and wife vs.. Winslox, Mass, I6s.
Where property Is limited to 4 person until r
arriage, and upon marriage then over, the limi- c
lion is good 1t is difficult, says Sir :. Wig
n, V. G. to understand how this could be
herWise; for in such case there is nothing lin 7
e VIII to give an interest beyond the marriage
b PIP. 800 \
We are Of the opinion that the annuity to
4