The Hawaiian gazette., 1896-08-11
OPINION OF THE COURT,
BY JUDD. c. ].

By JUDD, Z. j.
This is bill in equity to reform and
amend a trust deed. The parties plain
tiff, who are husband and wife, in view
of unhappy domestic differences be-
tween them, executed, on the 31st
March, 1894, a deed by which they
agreed to live separate and apart, and
bound themselves by certain stipula
tions as to the custody of their minor
children, Ruth and Muriel, and by
which the father, Alex. ]. Cartwright
called the party of the first part, made
through the Intervention of trustee
a settlement of certain property real
and personal for the maintenance of his
wife, Susie F. Cartwright Called the
party of the second part), and their
children, Ruth and Muriel. 1t appears
by the bill filed on the 18th March,
1896, that the differences between the
parties plaintiff had become reconciled
and they now wish to resume marital
relations and to amend and reform the
said deed in order that it may conform
to the changed conditions and relations
each to the other. The portions of the
deed which the plaintiffs desire to re-
woke and eliminate are particularly set
forth in the bill. The general principle
of law is that where all the parties to
settlement agree that the same or any
part thereof be revoked, it may be done,
but such revocation can have no effect
upon those not in eSSe nor those who
are not sui jUTiS such as the minor de-
PENDANTS are. Those parts, therefore,
of the deed under consideration which
affect only the plaintiffs were properly
allowed and sanctioned by the Circuit
Judge. Two phases or conditions of the
trust were disallowed by the Circuit
Judge on the ground that certain rights
of property were thereby voluntarily
created in favor of the children, who
could not be deprived of them by the
acts of the parties plaintiff An appeal
to this Court is taken against the Cir
cult Judges refusal to allow these am
endments.
We shall consider first the request of
the plaintiffs to strike out the condition
expressed in the deed beginning at the
2Sth line of the Sth page, and continu-
ing to and ending with the 18th line of
the 9Th page. Succinctly stated, this
condition of the trust is, that if a COM
petent court shall decree that the wife
has committed certain specified acts,
then "it shall be competent for the set
tlor or his successors to revoke the
trusts to the extent of the interest of
the wife, and that then the said inter-
est shall descend at once to the children
as if the wife had died. Other portions
of the deed create remainders in the
children upon the death of the wife.
1t is to be noticed that the termina-
ton of the life estate in the wife and
the vesting of the property in the chill
dren is not made directly contingent
upon the misconduct of the wife, but it
is left to the option of the settler to re-
woke the trusts created by the deed,
upon the happening of the event. Now,
if the settler does not desire to preserve
this condition and desires to relinquish
the power of revocation reserved to
himself, upon the happening of this
event, we see no reason why he may not
do so. The children, by this paragraph.
are not vested with any interest upon
the happening of the contingency of the
misconduct of the mother, for the vest
ing is dependent upon the exercise of
the power of revocation by the settler.
who no longer wishes to avail himself
OF this power. We see no reason why
this paragraph may not be eliminated
from the deed of trust. We now con-
slider the other elimination refused al
lowance by the Circuit Judge.
BY the deed the trustee is to invest
the estate and pay the net income to the
wife for the joint use and maintenance
of herself and said children, Ruth and
Muriel, for and during the natural life
of said wife. This disposition of the in
come the parties wish to preserve, but
what follows they wish to revoke. It
reads following the words ''for and
during the natural life of said party of
the second part ''and for such lesser
period as she, said party of the second
part, shall remain the wife of said party
OF the first part, and thereafter. while
said party of the second part shall re-
main sole and unmarried. whether said
sole condition shall be in consequence
OF the death of the said party of the
hrst part, or of the Intervention of any
decree of divorce from the bonds of
matrimony which shall hereafter he oh
tanned by said party of the second part
from or against said party of the first
part, provided, however, if such divorce
shall be obtained by said party of the