The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-09-23
OPINION OF THE COURT BY WHITING, J.


in Probate for the appointment of guardian of the of
respondents alleging they endhrifts The Circuit
Judge found that the respondents were pendhtts within the
meaning of the and made order of guardianship
Respondents appeal to this court
The proceedings statutory.
Civil When any person by excessive drink
ing gaming ideness debauchery of kind shall spend
waste lessen his estate expose himself his family
suffering his friends or relations may present com
plant setting forth the facts and circumstances of
the and praying have guardian appointed for him
Sec 1853 The guardian shall also manage the of the
rugay and without and apply the income and
profits thereof far be necessary for the comfortable
there be any.
The respondents respectively of the of Sc years and 80
years Their property and consists of income of twelve
hundred dollars each annually derived from property
left for them by their father Robert w Holt by will
The will of Robert w Holt admitted to probate July
% and of this will forth the requests
each of respondents and in terms the beque under
Sec of the will another Owen j. Holt deceased
wit: II give, devise and bequeath to my son. <
Onequarer of all estate both real and PERSONAL the income
of the be paid to him by executor named
for his and support for the term of his natural life and after
the death my said give devise and bequeath the said
onequarter to the heirs of the said x and their
assigns
This property has been held managed bya and
the paid to the respondents from time to time
The respondents on their appeal claim.
First That the property of the appellants already tied
spendrift by the will of their father r. W. Holt
who them life interest only IN his estate the principal to
be controlled by That this will creates spendthrft
the present petitioners seek to spend
thrift trust upon which absolutely useless and absurd
and only charges extra the appellants And further
that the already the of the court which has ample
enforce execution OF the trust created by the
will of r. W. Holt.
The evidence shows that respondents have kept within
the limits income, but have been usually in debt to
largely exceeding the and also that their income
has been devoted other purposes than their support and
further they attempted dispose of their life interest
their fathers estate.
Now if the terms of the will of their spend
thrift that the respondents could in dispose of or
sell their life interest and income and thus absolutely secure
them their future support there might be sound grounds
appoint guardian, for in such the trustee
under the will would be amply able protect the respondents
against wasting their property.
But in this particular to the respondents
claim that their life interest and income IS SO bound
up trust that they cannot dispose of or sell the same nor
debts and liabilities that creditors cannot reach their
income and life interest pay themselves.
This construed the will of r. W. Holt IN the OF
Harris Judd, administrator Estate Il. ". Holt, HaW
421 where the majority of the court held that Owen j. Ho
under his fathers will vested and therefore assgnabe
interest assignee could collect the income
The respondents rights under the will of their father
the same as Owen j. Hollis WERE and placed
upon them their property otherwise than by the terms of
their fathers WILL they sell and their LIE interest
and income in the estate bequeahed them.
Up the present time this decision rendered in 1873 has
been followed by the respondents and the trustee the Estate
of r. W. Holt and stand the law of this however
other have apparently taken different What
would be the opinion OF this court III cases where the Will pro
vded protection for spend against and creditors in
full and complete terms, do not discuss determine
These proceedings equity but statutory
under Sec 1852 of the Civil Code and the question of sound
of mind is not in issue
It question of fact for the Circuit Judge to decide
whether meaning of the respondents
spendthrfts The respondents claim that it must be shown
that they drinkers and spending and wasting
their expose themselves their families to want
and suffering and that the evidence is insufficient to support
such findings.
The Circuit Judge found respondents spendthrft and
the question there evidence warrant such finding
We have made careful examination of the evidence which
volumnous be forth in decision and find that 1t
that both respondents spendhrft that they
wasting their through excessive drinking SO even
tuav to expose themselves They draw their income
under r. w. Hollis WILL in such and
he
dav is spent drink and the day request for
made they frequently such times being greatly
liquor when funds could not be obtained
the trustee they would borrow small of fifty cents
and if possible from their relatives and spend
they do have any homestead of their but
relatives, visiting from family to family and
although times assisting such relatives with food supplies
vet repeatedly have they accepted the hospitality freely and
gladly them by such relatives yet because of the waste