The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-27
OPINION OF THE COURT BY FREAR, J.

OPINION OF THE COURT BY FREAR, j
This is a bill in equity for decIara-
tory decree upon the rights, duties and
powers of the plaintiffs who are named
as executors and trustees under the
will and codicils of John Thomas
Waterhouse, deceased.
The testatOr, after nominating his
wife and his three sons, the plaintiffs,
" as executors and trustees" devises
all his lands to his wife for life. After
her decease he gives his homestead
premises in Honolulu to his sons John
Thomas and Henry in fee, and his
dwelling house and premises in Cedar
Rapids, Iowa, to his son William for
life with remainder over to other men,
toned devisees. He then gives all his
other property, real, personal and
mixed, to his wife for life, "and from
and Immediately after her death he
gives the same in equal one-fifth
shares as follows, one-fifth to each
of his three SONS, the plaintiffs,
one fifth to his daughter, defendant
herein, and one fifth to his two
grandsons, defendants herein, with
a direction that the grandsons shall
not come into possession Of their
share before reaching the age of
twenty-one years respectively. He
then continues: "And L do further
hereby direct that my said Executors
and Trustees may in their discretion
carry on nv mercantile business in
its various branches and change and
vary any of my investments, stocks or
securities and reinvest the proceeds
thereof and invest any of the moneys
of my estate and change such invest
ments and sell at public or private
sale any of my real estate Except said
homestead premises in said Honolulu
and said dwelling house and premises
in said Cedar Rapids) and execute
good and sufficient deeds of convey
ance according to the tenure of lands
so sold TO the purchaser or purchasers
thereof as my said Trustees and Ex-
ecutors may from time to time think
proper"
The first codicIl provides as fol-
lows: 81 do now will and direct
that my Executors and Trustees
shall not be required or COM
PEELED by my SAID grandsons or
either of them to distribute or account
to them or either of them for any per-
sonal property or the proceeds thereof
within eighteen months after my said
wife's decease, or any real estate or
the proceeds thereof within five years
thereafter.
land also that if either of my said
grandsons shall die before coming
into possession of all his share or any
part thereof under my said will or this
cOdicil, the same shall go to his law
full issue il any then living, and failing
such issue then living to my sons and
daughters named in my said will.
"Aud in all other respects confirm
my said will"
Tne testator died January S, 1895 ;
his grandsons had already arrived at
thu age of twenty-one years; and his
wife had died more than eighteen
months (but less than five years. be
fore, namely December 2, 1891.
The question upon which instruc-
tiOns are asked is whether, as to the
real estate devised to the grandsons,
the plaintiffs are merely executors for
the purposes of administration, or in
addition either trustees or donees with
power to sell. The Circuit Judge,
from whose decree this appeal is TAX
en-, held that they are merely execu-
tors without power to sell.
The power of sale contained in the
will is without express limit as to the
time within which it might be eXer-
cised; but, since it is given to the ex-
ecutors personally and without any
expressions showing an intention
that it should continue longer, it
may, taken by itself, be considered
as limited by implication to the
lives of the executors and Therefore
not void by the rule against perpetui-
ties. See ? Wash. Real Prop. 4th
Ed 673.
But there are provisions in
other parts of the will and codi-
Gil which limit the exercise of the
power to a shorter period, aud the
main issue is whether it is limited by
the will to the life of the wife or 10y
the codicil to period extending five
years longer. If limited to the life of
the wife, it never came into eXiste nee,
because she died before the testator.
If made to extend five years longer, it
has until December ,, 1896, or nearly
a year and a half yet to run. That
the exercise of the power was intend.
ed not to extend beyond the latter
period, is evident from the fact that
within that time every devisee of the
estate covered Oy the power, whether
particular tenant or remainder man,
Is TO be or become vested of his estate
by direct devise, and there is no inten-
ton expressed or implied that these
estates should be subject TO an eX-
ercise of the power thereafter and 10
necessity or conceivable reason for
grant OF such power to be exercised
thereafter. "That in a will the power
was intended to- continue after the Ill
innate remainder had become
clothed with the legal fee is so highly
improbable, that such intention would
have to appear in the most unmistak-
able manner" Gray, Rule Against
Perp., Sec 493.
We are further of the opinion that