The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-10-26
OPINION OF THE COURT BY JUDD. CD.


An original bill IN equity presented under the
statute Section of Chapter & of An Act provide for the
opening improving and closing of highways passed by the
Legislature of 1892 which this Court the title of any
claimant the proceeds of land taken for street opening be
dispute given jurisdiction determine the party entitled
fund In this the ter Of the Interior deposited
in the awarded wit $4,000 for the land and 1000
for house thereon The bill W. brought by j. \. Maeoon
describing himself Guardian of +he person and
Susan Brasil and Administrator whe will annexed of the
estate of VIM Brash, deceased The efe7ants the
surviving children of W. Brasil deceased who left will
by which, among other things he devised the land whose pro-
ceed are question: eing the premises street Homo
lulu taken by the for extending Vineyard street, Susan
Brasb e but if she should die before marriage then
Elizabeth Brasil Robson and if Susan should marry and
have issue then to Susan her heirs and assigns
The bill asks that the deposited be paid the petitioner
guardian of Susan to be invested by him and the income APP
piled the wards maintenance and that the petitioner
awarded attorneys fee 800 be the sum
awarded The various children and devees of the estator
Brasil summoned appear and show Two of Them
Mrs Mary A. Waterbury and Mrs. Elizabeth Robson being
residents of California served with by mail
ordered by the Court None of the parties respondent made
written but VIM G. Brasil of Honolulu appeared and
orally objected to the charge petitioner and asked
that the whole be deposited with trustee be named
under bond securing this principal the interest be used for
the petitioners ward.
is clear that the proceeds of the awarded
the statutory commissioners whose proceedings shown by the
evidence be regular should retain the character
the original real estate According the will Of the
Brasil Susan entitled the income of the money e
having life interest in the land Who is entitled the pri
cp will depend upon the happening of the contingencies
pressed in the will 1t is present uncertain who entitled
the remainder If the remainder certain might dis
pose this according the rule laid down by Mr. Justice
Story in Foster o. Hiliard, ct a., Story r. H. that is by
dividing the principal sum, giving the life the value of
her interest calculating the probable duration of the wards life
according the tables and the the remainder
But do this the remainder contingent
The OF the estate must be held by the guardian of the
life Susan until the reversioners ascertained
But the main question before regard to the charge for
legal services claim for 500 filed by the petitioner
against the fund in and objected by
spondens The petitioner aorneyataw we'll the
guardian of the life and guardian subject the
Probate Court for the of his trust to which
he has annually An accession to the of his
ward his hands. Whether he is entitled any
pensaon as attorney for his attending the
issioners court and in bringing this suit and how much
matters solely within the province of the which super
his The only before the question who
entitled the fund But urged upon that the petitioners
beneficial to the revesOne whoever they
be- and that it would be equitable deduct for this purpose
proper fee from the principal before the life
tenant the principle that when life discharges
ncmbrance he call upon the reversioners contribute
But this not the state of facts here The took the land
for public An appearance before the by
the petitioner who represented the person entitled the time
the immediate of the land and he
the only person served with notice The land converted
into Uu and though the petitioners services
doubtless valuable increasing the award made
clear allow fee out of the principal of the
which would reduce its interest earning capacity the life
and reduce the inheritance the who did
not employ the petitioner counsel
Our judgment is that the petitioner guardian of Susan
Bra entitled to the possession of the fund.- be held and
invested by him. the income be used for the benefit Of the
ward the Clerk pay him his fling bond the
Probate Court the whereof to be settled and suetes
thereon be approved by that Court his compensation be
fixed by that Court out of current income
J. 4. Magoon and W. s. Edings for the petitioner.