The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-05-30
Is EouTrY.
Harris, ca. j.; Judd and McCully, ]. j..
Opinion by Judd. J

Opinion by Judd. J.
This case comes up on appeal from the Chan
cellor.
It appears that the late James Robinson, by
his will made the following devise in favor Of
his daughter Charlotte. the wife Of Eugene Won
HaSslocher:
a. give devise ard beqneath to my executors
hereinafter named in trust for the use aud benefit
OF my daughter Charlotte Hasslocher twelve
thousand dollars. the interest from the same TO
be paid to her for the term OF her natural life IN
quarterly payments, and after her death. give
devise and bequeatb the said sum OF twelve
thousand dollars to the children OF my daughter
Charlotte Hasslocher. who may survive her and
to their heirs. also give. devise and bequeath
to ms daughter Charlotte Hasslocher one thou
sand dollars"
The will is dated the 25th of July. 1872, aud
the testator died August Sth. 1876.
The defendants were named in the will as
executors, and procured its admission to Pro
bate on the It'll September. 1876.
The estate Of the testator is large. and more
than sufficient to satisfy all the just debts, fune
raj and testameutary expenses and the legacies
given by the will.
The defendants claim that they are entitled to
retain the income Of the twelve thousand dollars
above mentioned as it may accrue, as wen as the
legacy of one thousand dollars as an offset for
and 10 payment Of promissory note made BY
Charlotte Won Hasslocher and her husband
Eugene Won iiasslocher for five thousand and
seventy five dollars 10 favor OF the testator,
dated May 24tb, 1872 at San Francisco, Cali
foruia U. 5. A.
The bill Is brought to determine the question
whether the executors are entitled thus to re-
tain the bequests to Mrs Charlotte Won Hass-
locher 10 payment and satisfaction Of this note.
BY rHE COURT:
In this case TIE FIRST question arisas-Did the
testatOr release the note by his legacy
In . Rsdfeld on Wills, p. 52l, the author
says Ii seems to be we'll settled that legacy
by the creditor to his debtor shall not be treated
Us preSumptiye release of the debt. unless there
Is some special ground for presumiug such must
have been the intention OF the testator."
In Roper on Legaeies, p. 1925, We find
4" Where creditor bequeaths u legacy TO bis
debtor and either does not notice the debt, or
mentions it IN such manner as TO leave his in.
tention doubtful, aud after his death the securi-
ties are found uncancelled among the testator's
effects. the Court of Equity DO not consider
such legacy as necessarily OK even primG flIcis
release or exiiuguiShment Of the debt but re-
qures evidence clearly expressive of the inten.
ton to release the debt
IL, l064-' If such intention does not appear
clearly expressed or implied on the face of the
will, evidence from other sources will be ad.
mittedr
IL. 1906" But when the evidence to release
the debt IS not clear, either By reason OF the
ambiguity OF the expressions ia the will or OF
the insutfclency Of the evidence itself, the gift
OF the legacy will not of itself amount to re.
lease Of the debt"
10 the will under consideration the testatOr
does not mention the note, and We can gather
nothing from its contents clearly expressive oil
his intention to release it, No testimony from
other sources was offered FROM which any such
intention could be gathered. Adopting then the
rule Of law above quoted, we hold that the gift
OF the legacy 10 Mrs. Hasslocher did not sxtln-
guish the note aud the will itself is silent as 10
the testatOr's intention.
Mere absence OF intention can never be con-
strued into release See Written vs. Wood
house. Bro. c. c.
We are aware that where the testator being
indebted bequeaths to his creditor legacy equal
TO or exceeding the amount OF the debt, which is
not mentioned 10 the will, 10 the absence of any
contrary intention it is said that the rule is that
The testatOr shall be presumed to have meant
the legacy as 8 satisfaction of the debt. See
Roper on Lsgacies, p. IU26. But this rule has
frequently been dlsapproved of, and many ex.
eeptions are made to it.
The next question involved is-Whether Mrs
Charlotte Won HsssIocber can be considered as
the debtor of the testator. She, with her hus-
band. signed the note. In California, where the
note vas made, she would not be liable.
Civil Code of California, l6T QS72)-''A
wife can make no contract for the payment Of
money"
Brown vs.. Orr, 90 Cal 100" A married NO.
man L not bound by prOmissory note executed
by her jointly with her husband. 1t is the note
Of the husband alone"
Shartzer vs.. Love, 40 Cal ga woman Is
not personally liable on contract sigued by her
husband and herself. It is the contract OF the
husband Alone
Nor would she seem liable on such a note in
this Kingdom. See Civil Code, sec. 1881.
The note, therefore, cannot be set-oH against
legacy to the married woman, for it is not her
debt
The case os Rogers IS. Daniel ct al. 8 Allen
S4S, bears close similarity to the one We are
considering
Here 3 married woman had, 10 Baltimore
made = pronIssory note jointly with her husband
to her father for moneys advanced to her husband
living IN Boston. who left her Gas we'll as his
other childreu) legacy 10 his will on the follow
ing terms. viz: 8 Provided, however. that any
Legal debt due from either OF said children to nv
estate at the time of my decease, shall first be
deducted by ny said trustees, and the balance
only &c be invested for the benefit Of or paid
over to, such children a. aforesaid" The Sup
rene Court OF Massachusetts, held that this note.
because BY the laws Of Maryland the notes of a
married woman create no legal obligation on her
part, could not be considered as :. legal debt
due the testator BY his legatee, and that its
amount could not be deducted from the legacy.
Bat it Is said that this note Is still the obIigs-
ton to pay OF Mrs. HassIocher's husband. and
that as her personal estate Is, by oor Statutes.
the property Of the husband. it is liable for his
debts, and is subject to the rights Of his creditors
See Civil Code, sec 1856.
g The husband shall. il virtue Ct his marriage.
and 10 consideration Of the ra=nous; hiJ;t,az IN,