The Hawaiian gazette., 1890-01-07
In the Supreme Court of the Ha-
waiian Islands. In Equity. In
Chambers.

Chambers.
BEFORE PRESTON, J.
ALEXANDER ]. CARTWRIGHT,
TRUSTEE, VS.. LYDIA NJ. PIIKoI
OTHERWISE ENA) AND JOHN
ENA.
The bill alleges that defendants,
on June 26th, 1879, being then
husband and wife, executed a GER
tain deed of trust to the plaintiff of
certain property therein mentioned.
The deed recites that differences
had arisen between the defendants
and that they had agreed to live
separate and that the defendant,
Lydia, had so agreed to live separ-
ate at her own costs and expense
without charging her husband with
any debts whatsoever for her main
tenance. And that said John Ena
was DESTROYS that all the said
Lydia's property, both land and
chattels should be held to the sole
and separate use of said Lydia, her
heirs and assigns forever. And
witnessed that said ]. and L. Ena
granted and conveyed to the plain
tiff the property mentioned. To
hold unto said plaintiff his heirs
and assigns forever, upon trust to
apply the rents, issues and profits
thereof to the said Lydia for her
sole use and benefit and for her
support and maintenance, and upon
the death of the said John or in
the event of the death of the said
Lydia before the death of the said
John, to convey the same free and
clear of the trust to such person or
persons as the said Lydia might
direct, or by her last will and tesla
ment appoint.
The bill alleges that the said
John and Lydia lived apart and
that on the 18th April, 1888, said
John obtained a decree of divorce
absolute from said Lydia, and that
John lawfully married another
wife. That parcel of land de-
scribed in exhibit B in the bill, is
included in said trust deed, and is
unproductive and cannot be made
productive without large expendi-
ture of moneys, and is of great
value, and that the present income
of the trust property is insufficient
to suitably support and maintain
Said defendant Lydia, and to make
the repairs necessary to preserve
the trust property. That the re-
manning estate is in need of repairs
which will if made greatly improve
the same and yield a large in
creased income for said defendant,
Lydia, that it is necessary, advis-
able and greatly beneficial to the
trust estate and also to the use and
benefit of said defendant, Lydia,
that said parcel of land described
in exhibit B, be sold under the au-
thority of the Court, and the pro-
ceeds be devoted to the remaining
estate comprised in the trust and
that there is danger of great waste.
The bill prays that said parcel of
land be sold under the authority of
the Court, discharged of all trusts
and that the proceeds, after deduct
ing expenses and costs, be appro-
priated by said plaintiff to the use
and benefit of said defendant,
Lydia, and the remaining trust
estate.
The defendants answer admits
the allegations in the bill and
claims that the trust created under
said deed of trust had terminated
by the fact of the divorce between
said defendants and the defendants
submit that the Court has no au-
thority under the bill to order a
sale.
AT the hearing the defendants
urged that the divorce terminated
the trust under the authority of
S,Cit Us. Neumdn, l.. R., 10 Equity
Cases Is and Russell Us. DOlOding,
L. r., IA Equity Cases 421. But
these cases were overruled by Fitz-
gerald Us. Chapman, L. R., 1 Chan.
Div. 500 and Burton Us. Sturgeon,
l.. R., 3 Chan. Div. 31S.
These were all cases arising I'M
der marriage settlements, and as
the trusts of the settlements were
in some respects different from
those in the deed before me, it may |
be that the Court would, on proper |
showing, hold that the defendant,
Lydia, would be entitled to have
the trust property re-conveyed to |
her, but l cannot make such de- |
cree in this suit.
The only person now interested
in the trust property is the defend
ant, Lydia, she has under the deed
a right to the whole income of the
estate, there is no estate to protect |
for persons entitled in remainder,
and the defendant, who is under
no legal disability, objects to the
solo Of fho rorfiOp az tho acfoto for