Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1913-01-09

jHI8l1C 'Cn as ma"er OF law. Nur
= seems uIife nasuTal MAT ne d.,.-
ION should receive fail cNamIna ION
before proceeding with general
View Of the .aW Oh the questions in,
NON ed.
Alter repeated readings Of The Leci-
sion cannot avoid the conclusion tina:
the supreme mt Of (auf0rn4a con,
llhLal!; had liz mind that clause b" Of
the Will if read as an ordinary dOCu-
n"Ut OF letter was bad under the Cali.
lorna statute against a trust 10 con.
Nc| and thai II required not so much
keen search for the intention OF the
lCStatOr as all arhlIlaIH uetinitiUn OF
several OF the words used in the viii
and thus bring their restrictive mean.
ing IN harmony with the apparent and
persistent effort to carry on; the so
called desire which the testaiOr had in
mind al the time he executed the viii
irrespective OF the terminolOgy which
he used.
There Is no doubt WhateVer that the
tCSt atOr had IN mind when he executed
lis will that his sons Claus A. SpreCk-
els and Rudolph SpreckeIs should have
an equal third part of his estate al
sometime absolutely and fUreve" aftpI
the mother 5 death and that his daugn
=! ter Emma should have the net annual
income derived from the remaining
equal One-third part OF the estate DUR
ing her life with remainder over as
designated il the will and it is equally
clear that his desire could have been
4 in CT, NIL
guaGe and without further limitations
for there is nothing complicated about
lis apparent intention and were it
within the power OF the court to g
behind the full written expression of
The will the decision of this case could
easily be made. But the court is bounI
10 cOnstrue the will of the testatOr
by the words he deIibeI ately selected
and left as his last and final direction
and the court has 'no power 20 elm
mate any word nor modify or change
he meaning of the text II the con
struction of the will results in a judi
cial veto of the testators attempt to
dispose of his estate i; is nevert heleSs
! the duty of the court to proceed where
there is an ambiguity in the language
used and declare the legal effect of
the will Notwithstanding the result. Ii
is equally clear that the testator in
tended that the fee Of the estate should
remain in his trustees until all his
desires should be accomplished "a" to
lay over the annual income thereof to
his wife during her life and then "b'
to divide his estate into three equal
parts when TAT which time) orc OF
I said parts should be forthwith as
signed transferred conveyed by
deed) set over and delivered by his
trustees 20 his sons Claus A. Spreck
els and another of said equal third
+ parts should be forthwith assigned
. transferred conveyed by decd set
; over and delivered by his trustees to
, his son Rudolph Spreckels and to pay
i the net annual income derived from
the remaining equahthird part to his
daughter Emma c.. Ferris with re
mainder over as provided in his will
Cone is forcibly impressed with the
: fact that the court had continually in
mind that trust to convey was void
: and that there were words in the will
\ which by themselves imported such an
I Illegal trust and that it was impera
2 tive that the words the same shall be
and become his absolutely and for
2 ever" be held to be words CT direct de
/ wise sufficient in themselves to term
, mate the trust estate created by the
+ will and pass the fee to the benefi
e ciary. 2tfHy
D A continued perusal of the decision
S raising a feeling Of revolt against the
! force that has been used in order tC
r arrive at the conclusion that there was
no active duty imposed upon the trus
:, tees and that the result was a direct
u devise which at once vested the fee
| of the estate in the benefciaries.
| The court further suggests that the
tendency that has finally grown into
u a rule is peculiar to California juIis
Il GictiOn. In commenting on the result
: in Estate of Dunphy IA, Cal. 81 anC
u Estate of Haywood 14S Cal. 1874 the
: court says: that these cases furnish
I illustrations of the desire of the COur
i to 81 consider a will as to avoid the
4 necessity of holding that a teStato
i had attempted to create trust which
l. would be void.
= In Spreckels vs. Spreckels the COur
! further said: "A reading Of the sec
Ond and third paragraphs shows tina
-; the will aboundS in expressions which
under the prior decisions of this cOur
: must be held to import direct deVis'
Of legal Estates" still calling at
I i tentiOn to the tendency Of the Cali
fOrniH court to hold that such wills "a
/. the one under discussion are h"ld t
import a direct devise of Il legal Cs
tate.
If this conclusion follows (Which i
II not here admitted such COnstruC
> ton seems 10 be limited to tive COurt
{ OF California. Further the court dis
poses Of the comment Of their prpde
! CessOrs in the Estate OF Fair -
Cal 523 where it was said "ThC cas-
would have been different if there
had been an independent devise fol
> lowed by directions TO the trustees t
i convey to the dcyiSccs, in thar cas-
II the words of devise would create al
/. estate and tho rODNpE9nCp would hdN