The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-08-24
supreme Court of the Hawaiian Islands
In Equity. In Banco. July Term 1856.
EMMA BrcKLEr vs.. FRANK xrrcAIF, II AIS.

IN EQu1Vys IN 6anco. July Term 1000
EMMA BEcKLEr vs.. FRANK xErcALF, II AIS.
BEToRA JUDD, c, J., M'oULLY AND PRESTON. ). ).
0piHion Of tie Coa,t BY PRESTON,J.
On appeal from the Chancellor.
The nature of the case appears IN the following
decision of the Chancellor which Is appealed from.
This is a bill in equity alleging substantially
that plaintiff is the daughter and sole heir at-aw
Of Theophilus Metcalf, who deceased in August,
1866. leaving real and personal estate in this
Kingdom which he disposed of by will duly ad-
mitted probate: that under the directions of the
will all the real and personal property devised and
beQueathed TO plaintiff was sold 10 pay the debts
due from the estate OF the testator and no part
remained for distribution 10 the plaintiff: that
specific devise of certain real estate fully de
scribed IN the billy was made in the said will TO
Frank Metcalf, defendant, for life with remainder
20 his surviving children and on failure of issue,
10 defendants Helen Rowland and Julia Prosser
that defendant Frank Metcalf has minor children,
named IN the bill: that plaintiff, though the sole
lawful heir of Theo. Metcalf was by reason OF the
carrying of the said will ana the sale OF all the
property devised to her 10 pay testators debts,
deprived of every part Of the property or interest
IN the property belonging TO her father at the
time of his decease: plaintiff married IN 1901 and
remained under coverture till 1881 when her hus-
band died and she has not married since: that
on the 18th of October 1885, the interest Of Frank
Metcalf in the lands devised to him as above set
forth was sold at public auction TO Andrade, Hay
selden, kidwell and Henson, defendants, and
another parcel on Beret4nia street was previously
sold by F. Metcalf administrator de bOHiS of
T. Metcalf, TO L. Aseu defendant: that these sales
except the last were without validity to pass the
fee as Frank Metcalf had only life interest In
she same. The bill prays for the appointment of
guardian nd lHem for the minor respondents and
that such share Of the property devised and be
q1eathed 70 Frank Metcalf be awarded TO plaintiff
as TO the Court shall seem equitable, etc.
The attorney al iteDl has tled demurrer and
plea and the other defendants have either de-
INJURED or answered.
These demurrers raise the question whether,
since the specific devise Of the plantation or hau-
pskues 10 the plaintiff was charged with the pay
nent Of the testators debts and the same sold for
this purpose, the plaintiff as specific devisee, is
entitled u exoneration out of the lands devised to
the other specific devisees.
have searched the books in vain 70 find author
ity to sustain the view contended for IN the BILL
l think the right of a specific deYisee TO marshal
the assets against the heir of the descended es
tate is clear following the general rule that assets
70 be applied IL the following order, first the
personal estate, not expressly nor by implication
exempted; (second) lands specifically devised TO
pay debts; third estates descended TO the heir ;
fourth devised land, charged with the payment
Of debts generally fifth general pecuniary lega-
cies pro rata; sixth specific legateeS pro rata
(seventh) real estate devised, whether IN terms
general or specific.
Leading cases in Equity, $50.
HAYS VS.. jackson, Mass, 149.
But l am unable TO ind case where, the per-
sonal estate having been first exhausted and the
real estate specifically devised and charged with
the payment of debts generally being next taken
for this purpose and sold and the debts discharged
that the devisee of this portion of the estate has
the right TO be reimbursed from the portion of the
other specific devisees.
For this reason I think the demurrer should be
sustained.
The other points made have not considered, as
being unnecessary.
IN support of the appeal Mr.. Neumann con-
fffEg s-ff. u
Is not sufficient that part of the estate should
be charged (.cth tie debts and all the rest exon
Grated unless such exoneratlon is stated IN the
viii IN express terms. Story's EQ. Jur. 572, 573
and ga.
This is not the case here. BY this will, T. Met
calf under the impression evidently that he had
devised the most valuable part of the estate to the
plaintiff charged not only the debts but also lega-
cles upon the proceeds OF the estate devised TO
plaintiff.
Counsel further contended that nearly all the
adiudged 90 to the extent that the charge of
debts upon specific devise does not imply an ex-
oneraton of the other portion Of the estate unless
there Is express provision for such exoneration.
i part Of the residue of the estate. Mr.. Neumann
urged, Is IN the same position IN which 1t was
when the VIII went into effect. that part at least
should be made 10 contribute, IN proportion TO
make good IN a measure the loss Of her entire in
heritsnce TO the heir.
Counsel also contended that although there
might be no direct authority for the granting of
the relief sought, still no case could commend it
self more strongly to favorable consideration by
a Court OF Equity.
Story's Eq. Jur. $685. 566a and $40 and cases there
cited. Redheld or wills, p 365, note 50, 3rd ed.
81 TIE CouRT.-If by the residue of the estate
Is meant the residuary estate devised by the will,
the plaintiff has not claimed to be e1onerated
therefrom by her Bill, neither has she made the
resid1ary devisees (the Trustees of Oahu College,
parties and therefore, We cannot consider whether
she Is entitled TO be so exonerated.
If plaintiffs counsel only means the lands de-
vised TO the defendant Frank Metcalf, then the
point IS covered by this decision.
The contention made by the plaintiffs counsel
that the intention exonsrate should be stated IN
the will in express terms, Is too broad. 1t suf
cient If q a manifest intention . appears fStorys
Eq. Jur. 57I.) and we think such a manifest in
centiOn is apparent Ii this will.
The plaintiff has failed TO convince Us that,
there is any authority TO support the claim set up
BY the bill or that the decision appealed from is
incorrect.
We therefore affirm such decision and dismiss
this appeal with costs.
P. Ne1mann for plaintiff; J. 4. Magoon for
minor defendants aud Mrs. Prosser; Ashford and
Ashford for other defendants.
Honolulu, July 30th, 1856.