The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-06-11

snare WHICH the parent II lV1ng, would
have taken. And if there shall be bu
one such child. and no such issue, ~
onlv one child of such issue then living
teen the whole TO such one child"
The deed dated July Both, 1890. be.
tween the said Chun Along, julia
Along and William F. Allen. parties
of the first, second and third parts re.
spectively. after stating the same tc
be supplemental to the indenture dated
October 18th, 1889, repeats the recital
of the first deed as to the investment
| of the sum of two hundred thousand
dollars in two thousand shares of the
capital stock of the Pepeekeo Sugar
Company and recites that the said
Chun Along, in consideration of the
premises and of his natural love and
affection for his said wife and her
} children by him begotten, and in fur
Their consideration of the covenant of
the party Of the third part hereinafter
contained, doth hereby assent" ETC.,
contains the following provision:
Third. After the decease of the said
Chun Along, as well as when he shall
be absent from the Hawaiian Islands,
and during his said absence or bank
ruptcy or insolvency, or failure suitably
to maintain, support or provide for the
said Julia Along or any Of her children
| by him begotten, the trustee shall pay
the income of the trust funds to said
Julia Along, if living, for the support
of herself and her said children, and if
she be not then living, the trustee shall
pay the said income in equal shares to
all of the children of the said Julia
Along begotten by the said Chun Along
| and to the lawful issue of any deceased
child, such issue taking by right of
representation the share which the pa
rent, il living, would have taken, until
the youngest surviving child of Julia
Along begotten by Chun Along. shall
reach the age of twenty-one years, and
then to pay, transfer and deliver the
trust funds and all, if any, the unap-
piled income thereof in equal shares to
the said children and lawful issue of
any deceased child, such issue taking
by right of representation the share
which the parent, if living, would have
taken And if there shall be but one
such child and no such issue or only
one child of such issue then living then
the whole to such one child"
Counsel for the demurring respond
trustees. contained in the third para
graph of the trust deed dated July 80,
1890. that he shall pay the income of
the trust funds to said Julia Along, IL
living,1 constitutes an absolute gift of
such income to the respondent, Julia
Along, and that the words immediate
ly following, for the support of her-
self and her said children are merely
predatory in character and impose upon
the recipient no legal obligation to aD~
ply any part of such income towards |
the support of the children, and with
commendable energy and vast
amount of intelligent research, present. |
ed, during the course of the argument
on the demurrers, several hundred au- |
thorities in support of this contention. |
Counsel for the complainant, on the |
other hand contend that the words
used imply a trust for the mainte-
nance and support of the said Julia
Along, and the children of her, the
said Julia, begotten by him, the said |
Chun Along, and in support of their
contention also cite a formidable array |
of authorities
1t would be difficult, if not impossi- |
BILE, for this court in the limited time
at it's disposal, and in view of the many |
other matters pending and undisposed |
of requiring it's attention, to attempt |
TO reconcile or distinguish all or any |
of the many authorities which the in
dustry, ability and zeal of respective |
counsel have prompted them to submit
to the court for it's consideration, in |
support of their respective contentious |
as+ o5 J.
said, however, that generally, in the |
absence of anything tending to show |
contrary intent, where a sum or fund |
is given to a designated person, fol- |
lowed by words expressive of the in |
tent of the maker of the instrument |
under consideration, as to the applica-
ton of such sum or fund, the courts |
have held that such designated person |
is the absolute owner of such sum or |
fund, and, on the other hand, where |
sum or fund is to be paid over to a
designated person, followed by words |
expressive of the intent of the maker
of the instrument under consideration, |
as to the application of such sum or
fund, the courts have held that such |
designated person holds such sum or
fund as trustee for the person or pur-
pose specified in such expression of
intent.
1t may be conceded as true that lat |
terly courts are not SO astute to dis |
cover and enforce trusts from predatory |
words and are more inclined to find |
in the words the mere statement of |
motive or the vesting of a discretion in |
the donee, as asserted by the authority |
of Perry on Trusts, in note to Section |
1T, at page 125. as early as 1875, but |
I have been unable to find any author |
ity which has so far adhered to this |
trend of modern decision as to do vfo- |
lence to the plain intent of the creator |
of the trust, as gathered from the in |
strument by which such trust was cre-
ated. All that recent decisions, in this |
class of cases. tend to establish is the |
rule that in the absence of any fact or |
circumstance upon which the existence |
of a contrary intent may be founded, |
a court of equity will lean towards that
construction which will clothe words |
of the character indicated with a |
ma nil acf hi -