The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-22
OPINION OF THE COURT BY JUDD, c. J

OPINION OF THE COURT BY JUDD, c. J.
This is a bill in Equity to enforce a
trust, the prayer being that the Trus-
tee "be required to pay and account
to your Oratrix for all rents of said
Criterion Saloon and enjoined from
paying the same or any part thereof
to the said residuary legatees or either
of them during the lifetime of your
Oratrix.n
Circuit Judge Cooper heard the case
upon the bill and answer and decreed
that the plaintiff had no interest in
the property known as the "Criterion
Saloon"
Having heard the arguments of
counsel on appeal and having care
fully considered the pleadings, the
will of the testator creating the trust
in question, and the opinion of Cir
cult Judge Cooper we hereby adopt
the same both as respects the state
ment of the case and the rulings of
law made. The opinion is as follows:
''This proceeding was heard on bill
and answer and was brought for the
purpose of enforcing trust said to
have been created by the will of the
late John McColgan.
"The plaintiff claims that in addi
ton to the use of the Judd street
premises and the income derived from
the Germania Market property on
Fort street, she is also entitled to the
rents accruing from the lease of the
Criterion Saloon adjoining the Ger
mania Market on the makai side.
Briefly the provisions of the will
are as follows: The payment of debts
and several cash Iegacies out of the
- -knN hn nf q
estate situate on Judd and Fort streets
to J. +. Morgan in trust; the Judd
street premises to be for the use and
occupation of Elizabeth Moorhead the
plaintiff for her life; the rents, income
and profits from that portion of the
Fort street premises upon which the
Germania market Is now situated to
the plaintiff; as to that portion of the
Fort street premises upon which the
blacksmith shop is situated the in
come to go to J. McCorriston so long
as the plaintiff may live, and upon
the plaintiffs decease the property to
go to j. McCOrriston or the heirs of
her body and from and after the death
of the plaintiff the trustee to sell and
dispose of ali the residue of the Fort
street and Judd street premises and
the proceeds to be distributed as di-
rected by the will.
Gas shown by the bill and answer,
there were three separate buildings
upon the Fort street property, viz:
a blacksmith shop on the mauka por-
ton, then the Germania Market, and
the Criterion Saloon on the makai
part.
sit is eontended by tbe.plaintiff that
the Criterion Saloon cannot be treated
as undevised property, to go under the
residuary clause, and that the income
derived from it cannot be treated as
''trust funds remaining in the hands
of the trustee and that the testatOr
treated the Fort street property In
two portions only, the income Of the
blacksmith shop TO go TO Jane Nc
Corristou. and the income of the rest
of the Fort street property, including
both tue Germania Market aud Cri-
terion Saloon, being "the portion
thereof on which the Germanla Mar
ket is situated" as going to the plain
tiff.
"There being in my opinion three
and distinct properties on the
Fort street estate, each capable of be-
ing distinguished by the use of pop
ular name, such as the Blacksmith
Shop and Germania Market, IL the
had intended to make the dis
position of the estate claimed by the
plaintiff he could have so stated in
his will.
SIT does not seem necessary to de-
termine who may be entitled to the
income OF the Criterion Saloon, so
long as it appears certain that II IS not
the plaintiff, and upon this point /
see no room for doubt. The only part
of the estate in which the plaintiff is
interested is that specifically
given to her by the will, viz:
the use of the Judd street proper
ty and the income from the Germania
Market during her life, and in this
sense the Germania Market is not to
be considered as including the Critic
terion Saloon"
The testator McColgau put all his
real property in trust: and made his
tiff the recipient for life of the rents
of the "Germania Market" using
these words, "And as to the premises,
situate on said Fort street, to pay the
rents, issues and profits received from
that portion thereof upon which the
Market is now situate to
my said half sister Elizabeth Moor
head for the term of her natural life"
We find it impossible to hold that
the income from the Criterion Saloon
can be construed as passing
TO the beneficiary of the "Germanla
Market"
In the answer, (Which is TO be taken
as true) It is alleged "that all OF these
(the Blacksmith Shop, the
Germania Market and the Criterion
were occupied and used for
different purposes, rented to different
tenants and had no connection with
each Other,"-and sail three buildings
and the uses and purposes thereof being
we'll known as distinct and uncon-
oaofad with each Othari1