The Hawaiian gazette., 1884-06-18


Circuit Judge, Maui,
The question submitted is the construction
Of the 2nd clause of the will of BOardman
which is as follows: 81 give and bequeath 10
my daughter Amy Laura one half Of my land
in Makawao, Of about 400 acres, one large
bedstead and bedding, one bureau, one table,
one camphor trunk, the small clock, and one
half Of all my mUuey and other personal prop
erty with the same exceptions as in article LIST.
This property to be held in trust for her, by
my executors for her own use, free from the
control or interference of her husband, should
she marry"
The will is dated September 25tb, 1876, aud
John Boardman died on or about May 9th,
1883. At the date of the will, his daughter,
Amy Laura, named in the clause quoted was
unmarried. At the death of the testator she
was married, and was Mrs. Laura King, wife
of G. NJ R. King. Mr.. and Mrs. King claim
that she is entitled to the immediate convey
ance Of the real estate, and distribution Of the
personal property left her by ihe,will.
The Circuit Judge has so decided, and the
executors appeal.
The English statute of uses, which is sub
stantially re-enacted in most of the United
States, is not made the law here. If however,
its provisions are deemed reasonable they may
be adopted by our Courts.
See Sections IA and s23 Civil Code.
The effect of the statute is shown by the
following illustration: "If A. grants or be-
queaths lands to B. and his heirs, in trust for
G. aud his heirs, the trustee b. will take moth
ing in the land but the legal title and the ben
ehcial use will vest Immediately in G.
See Perry on trusts, Sec. 29s.
In plain case like this We think the stat
ute is wise, and that it should be followed
here
To the application of the statute in England
and elsewhere, there are certain well defined
exceptions, or rather rules of construction,
which limit the effect of the statute. One rule
''relates to special or active trusts which were
never within the puryiew of the statute.
Therefore if any agency duty or power be in
posed on the trustee, as by a limitation 10 a
trustee and his heirs to pay the rents, or to
convey the estate, or if any control is to be
exercised, or duty performed by the trustee in
applying the rents TO a persons maintenance,
or If the purpose of the trust is to protect the
estate for given time, or until the death Of
some one-in all these, and in other like cases
the operation of the statute is excluded, and
the trusts or uses remain mere equitable es-
tates" Id. Section sos.
OHutI lllIS Iulc IL 10 NGll btLlltu kDdA equity
will permit stranger TO give and settle prop
erty upon married woman, to her sole and
separate use, free from the interference and
control of the husband. Id. Sec. SAC.
To create such a trust, no particular form OF
words is necessary, but the intention to ex-
clude the husband must be unequivocal, and
when the meaning is clear the Court shall carry
the intention into effect.
II Sactions ain G47 6lS and cnEpS pitpd
At Section 652, Perry on trusts declares;
CAS- before said, if property is conveyed TO a
single woman for her sole and separate use,
she has the same control of it before plarriage
as if it was given to her absolutely; but the
limitation to her sole and separate use will
take effect upon her marriage"
This view is sustained by many authorities
in England and in the United States.
1t is also held in many cases that the trust
applies TO successive covertures where the in-
tention SO to apply it is clear, though at the
death Of the first husband the widow bias al
absolute power Of disposal.
See id. Sec. 653, Shirley vs. Shirley 9, Paige
36f. See also Bishop on the law of married
women, Sections sl4, Bis, SIG, SIT, s2l, s2l
aud s23. "a e-sH
At Section Sl4, this writer says: In Legal
principle, and on the prevailing authorities
both English and American, il is competent tt
limit an estate to the separate use Of woman
yet unmarried where 10 particular marriage il
contemplated; and on her afterwards becoming
covert she will hold it as her separate estate
free from the control Of her husband" Set
also Perry on trusts, Sec. eli. Such doctrine;
if adopted would enforce the trust in this case
Tie counsel for respondents however, az
against these views, relies upon cases decided
in Pennsylvania, and cited III note to section
| 652 Of Perry on trusts, where it is said that
"In that State to create a valid trust for thu
sole and separate use of woman it is neces
sary that she should be married at the time
or that she should be in the immediate con.
temptation of marriage" See also Perry OF
Trusts, Sec. $40, to the same effect. And tn,
respondents counsel claims that this applie
to the case in hand, and is more reasonable
than the other doctrine, and leads to the abro
CATION of the supposed trust.
We are not now prepared to say that th'
respondents counsel is wrong, nor do we thinl
1t necessary to do 80 in order to decide th
question before us.
The trust, if any, declared in this case is b.
will. The provisions of a will are ordinaril,
"ambulatory" until the death of the testator
See Perry on Trusts, Sec. 90. The rights Q
the executors as such, and as trustees, vestet
at the death of the testator.
Red6eld on Wills, p. 1876, Vol. ).
The trust in this case if valid, is strictly 0
q testamentary character, and could not pos
| sibly arise or become vested until the death o
| the testator.
Redfeld on Wills, Vol. 3. p. 1872.
In the absence of express provisions show
| ing otherwise, will is to be considered witt
reference to the facts and circumstances exist
| ing at the death of the testator.
See Redield on Wills, Vol. 1879, $50, Al
and 4l4.
These are familiar and undispuied principles
and doubtless the rights of the devisee, lega
| tee, and trustees in this case became vested q
4 the testator's death, aud not before. At tina
| time the respondent was a married woman, AM
the contingency mentioned in the will had oc
CURED. Tie will speaks of her rights as the,
| were affected by her condition at the time o
the testator's death. If then, the words uset
were sufficient to constitute q trust to the sep
arate use of a married woman, the trust elaine,
by the appellant is established.
On looking at the language used in the will
we have no doubt it is amply sufficient TO es
| tablish such trust. ~
See Perry on Tusts, Section 64s and the in
stances there cited. ~
Holding it to be a trust, is in full accort
/ with the decisions in the Pennsylvania cases
and with Hasslocher VS.. RobiDson's Excors
Hswn. r. 500. 1t is a trust in favor Of mar
ried woman, in strict observance Of the declar
ed intention Of the testator.
The executors retain the property invested
with the trust to pay the income, rents ant
profits TO the csstai quf trust during her cover
/ ture.
The decree must be reversed with costs.
F. NJ. Hatch for executors; P. Neumaun TO
Mrs. King.
Honolulu, May 2sth, 1854.
supreme Court of tho Hawaiian Islands.