The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-05-09

nuiakea living at his decease, to the
Queen s Hospital aforesaid. -
The bill AYERS that Kunuiakea has
died without leaving lawful issue anC
that the trustee holds for the purpose OF
the trust the sum of $35,1S5 proceeds
of land condemned by the United
States government for public purposes
which previously was productive Of lit
tie or no revenue, and bonds and mort
cages of the value of upwards of $4,000
(shown by probate records IN Queen
| Emma s estate to be proceeds Of land
taken for street widening), yielding an
annual income of over $3.50 and that
the rest of the land held in trust and
valued at upwards of $68,000 yields an
annual income of upwards of $4,000
which is more likely to increase than
decrease.
The defendants demurrer, on the
ground that the trustee is required by
the will to retain all of the trust prop
ertv until the death of all the annui-
tants and cannot safely or prudently
deliver over TO the plaintiff any part of
the corpus of the trust fund and that
| the defendants are entitled to insist
! that he retain it. was sustained and the
| plalntlH appeared.
The plaintiff submits that sit is clear
! from these provisions that if all the
annuitants were dead and St. Andrew s
| Priory had ceased to exist, the Queen s
| Hospital, being the only remaining
| beneficiary, would be entitled to receive
| the whole corpus of the estate. The
annuities and scholarships having
lapsed the trust would have become a
4
apply or else "the court would de
clare the trust terminated and order the
trustee to convey In support of the
claim of ga portion of the corpus in
view of the fact that two of the annui-
tants are alive and the Priory IS also
still in existence it is argued that
E'the principle applicable to cases
where the objects of the trust have
ceased to exist is applicable pro tanto
to a ease in which the objects have
been partly performed and there re-
mains in the trustee a large fund great
Iy exceeding what is necessary to carry
out the remaining purposes, and where
the trust property consists of several
distinct parcels:' in other words,
"that this trust has, in effect, become
partly dry. and that, therefore, the
residuary devisee is entitled to receive
the corpus over and above what is
necessary to the performance Of the ac-
tive part of the trust, citing Inches V.
Hill. 100 Mass. 575; Sears V. Hardy. 120
Mass. 524; Turnage Y. Greene, 50 \. c.
90; Hardin V. Masterman, l Oh. (1S96)
35I; Haw. T. & Invest. Co. V. Barton,
10 Haw. 294, 301.
The contention of the defendants is
that there is no express authority for
the proposed action given by the will,
nor is there any implied authority, the
power to sell after the death of the an
nuitants showing that the testatrix did
not wish this to be done before then al
though having in mind the inconveni-
ence of keeping the whole estate in
trust merely that the scholarships
might be provided for; that equity has
no power to modify or set aside the
provisions of trust and can only ter
inmate it when all its purposes have
been accomplished or, according to
much authority, when all the bene-
ficiaries desire its termination and no
good reason appears to the contrary;
that the testatrix had legal and moral
right to withhold the capital trust fund
from the hospital until the death of the
annuitants, and the court cannot say
what reason she had for doing this en-
tirely aside from protecting the annui-
tants, citing Floyd V. Davis, 9S Cal. 591,
600; Young " Snow. 167 Mass. 287;
Clafiin v Clafiin, 149 Mass. 10; Hawley
V. James, 5 Page 31S.
The plaintiff submits that there is an
inconsistency between the provision for
sale upon the death of the annuitants
of one or more pieces if what remains
will in the opinion of the court produce |
income for the scholarships and for dis |
trlbution of the proceeds and the pro- |
vision for selling, after the death of the |
annuitants, the remainder of the land |
and relnvestlng the proceeds. 1t was
the intention, it is suggested, although |
not expressed, that the first provision |
should apply to a sale of portions of |
the trust property before the death of |
all the annuitants, hence the phrases |
remainder of said real estate,' and |
remaining land or lands'' in the see
Ond provision, and the requirement in
the first provision for dividing the pro-
ceeds because all the lands or proceeds |
of sales thereof would no longer be re-
quired to produce sufficient income for
the remaining annuities and the
ScHOldESnIpS, Wnlle under the second |
provision the proceeds must be reinvest-
ed because it was contemplated that
by the time all the annuitants had de-
ceased the unsold land would yield only
the income required for the scholarships.
The inconsistency. however, is not APP
parent between sale and distribution
of proceeds of land not required in or
der to secure the scholarships and a
sale, If found by the trustee advisable.
of the rest of the land also with direc
lions to invest the proceeds in other
to be held upon the same trust
for paying its income for the scholar
ships and dividing the surplus income
between the hospital and Kunuiakea or
his issue.
If it were not for the life annuities
and scholarships remaining to be paid
out of the income of the trust property
the plaintiff would be its sole ultimate
as well as present beneficiary and as
such would be entitled to a conveyance
of it by termination by decree of |
court of equity of the bare trust of |
merely collecting and paying over the
income. 1t is against the policy of the /