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

For instance, IN Iurnage V. Greene ).
\. c. 63. the fund which was ordered
to be paid to daughter of the tesla
tor was eventually to 90 directly anc
meanwhile the whole profits went t.
her. "In her, then, are united the pres
ent right to the whole profits and the
absolute ultimate dominion which gives
as perfect d property as is known tt
law \ similar case was presented
in Inches V. Hill, 100 Mass. 575 and il
Sears V. Hardy, 120 Mass. 524 But
the same court dismissed bills to ter
inmate a trust in two cases cited BY
the defendants in which the circum-
| stances were somewhat similar to those
| of the present case. In the first, CIafin
V. Clafin, 149 Mass. 10, the trust
created by the will to pay the proceeds
of the sale of the residue d the tesla
tors estate to his son, $4,000 when
! twenty-one years of age, $4,000 when
! twenty-five years of age and the bal
ance at the age of thirty years. The
| court said: ''The strict execution of
| the trust has not become impossible -
| In the second case Young Y. Snow. I67
| Mass. 2S7. the testator had left the resi-
| due of his estate to trustees to be held
| by them for twenty years and then it
was to go to- his heirs at law, certain
annuities meanwhile being required to
be paid to his children from the in
come, surplus income to accumulate for
ten years and then be paid to his heirs
until the end of twenty years when all
of it was to 90 to them. There was
more than enough income for the annui-
ties The plaintiff, as assignee of one
of the children Of her share of the Trust
property, brought a bill to terminate
the trust in respect of that share. the
other children consenting, but the court
said: whether the testator made
these provisions for one purpose or an
other IS immaterial since he had the
right to order as he did,
The plaintiff does not controvert the
defendants contention that in the
American cases cited, in which a trust
was terminated or a resulting trust de-
clared, there was no opposition to the
jurisdiction being exercised by the
court and that all the legal and equit-
able interests were held by the person
in whose favor the decree was made,
and that in cases in which opposition
was made or when there were outstand-
ing equitable interests the court de
clined jurisdiction, but it submits that
the English practice, as shown in the
Hardin case. allows exercise of juris-
diction in such matters. The attorneys
for the St Andrew s Priory appear to
think that the question is whether the
rule of that case shall prevail against
American precedent.
At first glance Hardin V. Masterman
appears to be on all tours with the
plaintiff s case and in conflict with
American decisions. But the facts in
the two eases will be found upon ex-
animation to be so essentially dissimi-
lar as to justify and, perhaps, require a
different treatment in the English case
than in the case at bar. There was a
bequest to trustees of the residue of
the testatOr s personal estate upon trust
to permit the same to remain in its
actual state of investment or to alter
or vary the investments and to pay out
of the annual income several annuities to
certain persons, of whom at his death
ten were living. The will required the
trustees in every year to invest any
surplus income Of the trust moneys,
whether it should arise from the deter
minatiOn Of any annuity or otherwise,
upon certain securities named and,
after the death Of the survivor of the
annuitants, to convert the trust funds
and the accommodations into money and
stand possessed thereof upon trust in
favor of five charities. Directly after
the death of the testator his executors
instituted suit for the administration
of his estate. In this suit the estate
was administered and considerable sums
of money were from time to time paid
into court and cOnsols purchased there
with and carried over to separate ac-
counts for payment of the annuities. |
In 1871 the Vice Chancellor held that |
the charities were entitled to all of the |
residuary pure personally and to the |
accommodations during twenty-one years
from the death of the testator, also that |
he could not, having regard to the |
frame of the will, then order a division |
of the fund, although the annuities were |
amply secured. He might have ordered |
a division, he said, if the residuary |
legatees had been individuals. but as |
they were charities he thought he
ought not to stop the accumulatiOns In |
1898, twenty-One years from the tesla
tor s death, the court held that the an
had no right to resort to the
surplus income of any past or future
year or to the Accommodations for the
purpose of making up any deficiency
and that the five charities were entitled |
equally to all of the surplus income of
the pure personally and the accumula-
tions thereof "and to such part of the
fund in court as represented the same
This order was affirmed |
on appeal. In 1894, by consent of nine
out of the ten annuitants, certain sums
were carried over to their accounts and
the provision thus made for their an
nuities was accepted by them in full
thereof, with the exception
of the tenth annuitant, Mrs. Venables,
who did not consent. Her annuity was
6 80 and the order directed that the |
sum carried to the credit of her account
should be invested in 6 5000 212Go an
nuities, the dividends of which were to
be paid to her during her life or until
further order. She declined to accept |
this provision. The charities thereupon |
brought petition for payment to them
of the fund in court other than the
sums set apart to answer the annuities.
1t was conceded that the charities were |
entitled to have paid out TO them fine |