The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-05-19
OPINION or THE COURT BY
WILDER, J.

This is an appeal py John F. Colburn,
| trustee. from decree of circuit Judge
in regard to the distribution of the
property by the administrator de bonis
non of the estate of r. W. Holt with
the will annexed
The final accounts of the administra-
tor having been approved, Colburn filed
a petition before circuit judge of the
first circuit sitting at chambers in pro-
bate, alleging his ownership of all prop
erty bequeathed and devised by the will
| to John ID. Holt and James r. Holt, and
! praying that the administrator convey
| to him in fee simple certain lands re-
| ferred to and distribute and deliver to
| him in absolute ownership all the per-
| sonal property remaining in the hands
| or under the control of the administra-
| tor. The circuit judge denied the petit
| tiOn in so far as it sought distribution
in fee simple of the lands and in abso-
| lutte ownership OF the personal property,
and entered a decree ordering that the
| property in question be distributed to
| Colburn subject to the terms of the will
and to other conditions unnecessary to
refer to here.
| Colburn is the successor in interest of
John ID. Holt ard James r. Holt, sons
of R. W. Holt, to each of whom the tes-
| tator beoueathed and devised Zone
] quarter of all my estate, both real and
| personal, the income of the same to be
| paid to him by my executor hereinafter
named for his use and support for the
term of his natural life, and after the
| death of my said son I give. devise and
| bequeath the said quarter" to his
heirs and their assigns.
The first claim of appellant is that
each of the sons, John and James, took
| a fee simple estate under the will by
virtue of the Rule in Shelley's case was
was held in Thurston V. Allen, 8 Haw.
| 392, that the Rule n Shelley's case was
not law here. Later it was held that
| that holding was not obiter dictum.
Rookie V. Queens Hospital, II Haw.
375, $50. The question is not now open
to argument. Therefore, it must be
held that each of the sons took only a
life estate. See Long V. Holt, Is Haw.
500.
The next contention is that the will
expresses no trust which gives the ex-
eeutor' or anyone else the right of man
agement and control of the property.
This contention is without merit be
cause it has already been decided adj
versely to the claim of appellant in
Dreier V. Holt, Is Haw. 179, followed
by Long V. Holt, Is Haw 300. See also
Harris V. Judd, 3 Haw. 421; In re
Guardianship of Holt, IL Haw. 146.
In Harris V. Judd, which was a sub |
mission on an agreed statement, one of |
the claims was that the will of R. w |
Holt created the executor a trustee ''to |
hold the said real and personal estate |
thereby devised and bequeathed and to |
pay over one-quarter of the net rents, |
issues and profits of the said estate to |
the said Owen Jones Holt' (whose in
terest under the Will was the same as
Colburn s predecessors ''for and dur
ing the term of his natural life for his
use and support with remainder to the
heirs of the said Owen Jones Holt and /
their assigns. Two of the Justices ex-
pressly held and the third Justice as
sumed that the will created a trust.
In re Guardianship of Holt was an
appeal by James r. Holt ard john D.
Holt, Colburn's predecessors, from an
order putting them under a spent
thrift guardian. One of their conten-
lions was that the will of their father.
r. W. Holt, created a trust, claim
which is in conflict with that which is
now advanced by their successor in
interest.
1t is argued, however, that the hold
ing in Dreier V. Holt. Is Haw. 179,
contrary to appellants present conten-
ton, was a dictum. That was a case
to foreclOse a mortgage of r. W. Holt
which included, besides other property,
the mortgagor's interest in the land
devised by the will of his grandfather |
1t was claimed that, as no conveyance
OF such interest. had been made to the
grandson after the death of his father. |
he could not mortgage it. Thus it
became necessary to inquire whether |
the grandson had any interest in the
lands devised by the will of his grand
father and if so how he acquired it. |
and therefore the holding of the court
that the will created a trust and that
upon the death of the life tenant the
statute of uses rendered unnecessary a
conveyance by the trustee to the re-
mainderman was not a dictum. 1t is
true that in Long V. Holt. IS Haw 200 |
which followed the Dreier case on the
point in question. it was held that the
administrator de bonis non of the es-
tate of r. w Holt with the will an
rcXed could not maintain a hill ir |
equity as to the construction Of the /
Will, but it Will be noticed that the /
reason for such conclusion was that |
the previous decisions of this court had
decided all that concerned the
administrator in regard to the will.
1t is finally urged by appellant with
out waving his previous claims that in
accordance with another petition which
he presented the administrator de bonfs I
non with the will annexed should be
ordered to distribute to him in fee an
undivided two-thirds of the land pur-
chased during November. 1852 by w.
A Aldrich, executor of the will of r
w. Holt. upon payment by appellant
to the administrator of the sum of
$971S.52, being two-thirds of the pur-