The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-03-01
Supreme Court-In Equity.
B.fore he TTee Chancellor.

]. NJ. Smith. Z. o. Hall and S. b. Dole, trustees of the
Estate of Lunalilo. Us. S. G. Wilder, Minister of Interior.
session. care and control of the mausoleum which was
erected in the year 1875. in the churchyard of the Hawai-
remains of His late Majesty LunalilO.
Ki HSe K sa1sSaySgSi N nj 9a and Ss K Kas SSn NGia k eE SGea 81
dated the 2lst day Of July. A. L. 1872. It is entitled "The
in Honolulu" and grants the building and premises to
religious creed which is given in full in the deed. This
deed was confirmed by the Board OF Commissioners to
Award on Claim No. 635. which awards % the premises to
the members of the first church of Honolulu, to have and
terms and conditions set forth in the before mentioned
exist as a church and sustain their present faith"
, on the 81 18th sse SEP sfP'e en- ai: i isss' ,f On tfs inquest tSr e4e OF the He
committee Of the Kawaiahao church dedicated and set
western side of the churchyard, which action was. on the
26th September, ratified and adopted by the Board of
committee ordered engrossed on the church records.
Inc 1as. aeai cSnrch t frnm ,o reYotin m1 tbs S %9T1a goIOp pnd a sr Aa,
making any other disposition Of this ground, so long as
soleum.
Hill, al: Land may be dedicsted to pious and charita;
BILE purposes, as well as for public ways, commons and
the owner who makes the dedication. Dedication, as the
voting or giving property for some proper object, and in
such . manner as to conclude the owner.
dinarily, some conveyance or written instrument is re-
sIppiieaSie 10 dedicstioSs is diaeren.. a dedicsttton nav nav
be made without writing; by act 4" pals as well as by
ui sbt Il, Is mot ,9t, At x al Isf Ss S. t that t. tas 3%ne r. should part r
WI ny 1o = ! ! us.s s nnS n nt tse y as11eatS Sstsse re III sae :
Is not TO deprive q party OF title to his land. but TO estop
ing that right Of exclusive possession and enjoyment
which the owner Of property ordinarily has" -,
Commonwealth VS.. Wall. Allen, 5l4-
mAusoleum, may be considered as a dedication If not to q
g rsls5 public use sss Certainly nI.Gs to J a P pun %sss the aot shsraf CITE, q 3;
should be saeredly preserved and hAllowed
terments in the ground, the heir has no property in the
todies or ashes OF his ancestors, and he cannot sustain an
body after burial becomes 4 part Of the ground where ii
dust" the person who has the freehold of the soil can
bring an action Of trespass qlare eldHsHm Jre0h, against
the actual possession OF the land may sustain this action
against = wrong doer.
Meagher VS.. Discaii, % Mass, PSI.
Barnstable vs.. Thatcher, 8 Met, 243.
But where the owner of the freehold Of the cemetery
has by s deed conferred a right to the exclusive occupa-
maintain an action for trespass on the particular lot. See
Blackstone says further, that other personal chattels
there are, which also descend TO the heir in the nature of
the cost-armour of his ancestor there hung up. with the
R e nor and other other e ihd Of honor Or suited suit to his degree;
parson, and these are annexed to that freehold, yet can.
not the parson or any other take them away or deface
them, but is liable to an action from the heir" 2B.
The facts of the case before us are quite different, and
therefore the above principles of law are inapplicable.
ground. nor was it placed in a church with a monument,
or tomb erected over it, or affixed to the walls or floor of
erected by the executor Of his will, in accordance with its
iRuian. III the "AiAn 'nur'ns'f' IN HOMO
BY directing the " suitable tomb " to be erected for the
reception Of his own and his fathers remains, the royal
testAtor contemplated the expenditure of a considerable
must mean a tomb suitable for the interment Of one of
HAwAii's kings in the condition of this one as to lands
nent structure Affixed to the soil.
I think also that the ~testator must have contemplated
that his tomb would. according to the custom Of this
kingdom. need a custodian as well as repairs in course of
time. Now when he made the disposition Of all his real
estate to trustees for a charitable purpose, he had a right
fStheTI for the appotntmont of the ~ trustees' his hi . toI mi
would be built and that it would form a part OF his estate.
record by the holders of the freehold to this purpose. is a
And though there are 40 specihc words in the will vest.
ing it in the trustees or authorizing them to expend
was the intention of the testator that his trustees should
have that authority.
In ? Perry on Trusts. S. 477. a citation - made from 2
Hare. l4S, in which 1t was held, "wheTe a fund was
direetsd 70 De IAid Out IN land and ther as already a
eial TO apply part Of the fund to prevent buildings on the
whole fund to the purchase of new lands. but it would be
an extraordinary case which would move the Court to
And Ibid Sec. AS. superintendent Of public works
their control in opposing Legislation which would opeT-
ate injuriously TO the interests eOnhded to them. Lord
COttenham said that. every trustee is to be allowed the
t tss 9p51setr and P up e, sIRReHses incurred in protecting
His Majesty Lunalilo having disposed of all his prop
s5,y real e and q peTsonsl by y viii; his heirs at law have no
dedication. consented TO the use Of q portion of their free
used for its care and maintenance; it is under no legal or
moral obligations to sustain this mAusoleum; it has there
fore no further interest in 1t so long as the site is kept for
the purposes for which IL was dedicated.
The claim OF the Minister Of the Interior now remains
to be considered. II is quite plain from the will that the
testator wished his reInAins TO be kept free from state
control. II he wished otherwise. he would not have pro-
vided a special tomb for himself, and his remains then
would have reposed in the state mausoleum. But it Is
said that the grant of the Legislature OF $500 for :" pay of
keeper OF LunAlilois tomb" for two years. implies the
right Of the Minister of the Interior, who is the dispenser
Of this fund, to the possession OF the tomb. But this
grant was purely q voluntary one on the part of the Leg
islature for services to be rendered, and the government
Is not bound to draw and expend il, as il would be if this
sum WAS voted IN fulhllment Of some prior obligation or
contract on the part Of the government. If the govern
ment should ascertain that the services of a keeper were
not needed, or that his pay was otherwise provided for,
IT would be under no Obligation to draw or expend the
money.
This mausoleum not being state property, the govern
ment is under no obligation to care for il, and the gov
ernment's act in taking possession Of it cannot be JUST:
fed. AS in my opinion, the intention of the testator will
be better carried out by the possession Of this tomb re-
naming in the trustees of his real estate, i therefore
grant the prayer OF the bill and decree accordingly.
Messrs. Dole and HArtwell for eOmTlainAnts; Attorney
General Preston for respondent