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

enough 10 answer Ine dHHuItitS anu ina
the court could not diminish the corpus
of the security against the annuitant :
objection. To this argument II was re
i piled that ever since 1884 1t had been
| uniform practice TO give to reslduary
legatees what the testatOr INTENDED
/ them to have as soon as the annulties
were released or sufficient provision for
them had been made; that if this were
not so "no part OF residue OF
| 100000 could be paid out to a resid-
uarv legatee if an annuitant of S 100
a wear Object The court dismissed
the appeal holding that. although &C
| cording to the strict language of the
will the annuity would not come to an
end until Mrs Eenables death, and
| upon the terms of the will there was
no jurisdiction to order the residuary
| estate TO be distributed until after her
| death. vet the meaning Of a will which
charges an estate with legacies of this
! kind and directs that upon the death
! of the survivor of the annuitants the
residue was to be divided is that it is
gift of the residue, subject to the
navment of the annuities and. if ample
provision is made for their payment.
| that it has been the practice to let the
! residuarv legatees have what is theirs,
| subject TO the payment of the annuities
The viii of Queen Emma gives her
trustee no power, except upon or after
the death of the life annuitants. to
change the investment of the lands de-
vised to him in trust, which was not to
pay annuities tout Of the income,
with no disposition of surplus income,
but to "devote all the income to pay
ment of the annuities and to paying the
surplus to the hospital and Kunuiakea
while living. The annuities are not
charged upon the residue. but are pay
able from the income of lands set apart
by the testatrix as suited for her OBJ
iects No funds are in court for its
direction. With power to change the
investment the trustee might invest IN
securities not fuctuating in value. In
come from land is uncertain, but court
Il es not contemplate the possibility
that principal and interest on national
securities will not be paid. The con
soils in which $4,000 were invested in
the Hardin case insured payment of the
annuity. especially if resort to the prin-
cipal could be made, as suggested by
the court, IN case of a deficiency.
If the trustee could sell this land
and should buy L. s. bonds with the
proceeds-at present rates $93,6O0
would buy two per cent. registered
bonds Welding an income of $500, the
amount of the outstanding annuities-|
the annuities would be fully secured.
But this course would not only be of
doubtful value to the hospital, it would
nullifv the direction of the testatrix
that the lands be held by the trustee.
In view of the facts we think that
a decree such as was made in the Har-
bin case might, under like conditions,
be made by any court of equity ]urls-
diction. That it was not a departure
from practice appears in Weatherall v
Thornburgh. Oh. D. 261, which, upon
the doctrine of the American cases cited
bv the defendants, held that person
entitled to a trust fund subject to pay
ment of an annuity and legacles, was
not entitled to it Immediately upon
sufficient sum being reserved to pro-
vide for the payment since the tesla
tors language did not permit this, and
che had a perfect right to do what
his language shows he did, and he dld
that not merely for the purpose of post
poning the enjoyment of the surplus
by the residuarv legatee but for the
purpose of making an accumulation to
provide fund for the payment of Ger
tain legacies which he bequeathed out
of the accumulations. "
The following cases illustrate the
rule. In trust to pay over the resi-
due of trust funds after expenditure
of certain sums of money in establish
ing an observatory and public baths, !
erecting a group of bronze statuary
and founding a school of mechanical
arts although, after sale OF the LICK
House there were ample funds for all |
the purposes named, the reslduary
legltees could not be paid until all the !
other trusts were performed, since tine |
will of the trustor is its (the courts)
wiIl'' CFloyd V. Davis, SO Cal. 591, 60D, |
but a trust to pay the rents, issues
and profits to A for life and then to B
for life may be terminated by consent
of all who are beneficially interested,
the trustees interest in his compensa-
ton being mo reason for the contin-
uance of the trust" Eakle V. Ingram,
142 Cal. Is.
The object of the trust created in this
will is clear. The lands of the tesla
trix, situated in various parts of Oahu
and Kauai, are devised as follows: Two
tracts of land to Elizabeth Pratt, one
to Mary Lewai, a house lot TO Lucy
Davis, two pieces Of land and house
lot to Grace Kahoalii, two parcels and
a house lot to Stella Keomailani, rights
of residence to HikOni (w) and to John
and Lou Blossom, nine parcels of land,
the Nuuanu Valley residence
and waikiki residence, to the Queens
Hospital, five tracts of land to the
trustee to pay the rents to Kunuiakea
for life over to his lawful issue, with
power in the trustee at the request of
to sell the same free from
the trust holding the proceeds upon the
same trust, seven tracts of land to the
trustee to divide equally the income,
after payment of the annuities and
between the hospital and
Kunuiakea Whether the income would
exceed the annuities or not, ii was not
until the death of the life annuitants
that any of these lands could be re-
leased from the trust, and then, as If |
at first tentatively, by setting apart
such of them as in the opinion of the
court would produce income enough for
the scholarships, and presumably in