Year: 1872

The Estate Of tle late Napsa Zupplien Kaiuahine


deceased.


ON SUBMISSION BEFORE CHIEF JUSTICE ALLEN, AM


ASSOCIATE JUSTICES HARrwEIL AND w1DENANN.
This case is submitted on an agreed statement
! of facts


1: appears that Napua Zupplen made {


deed in trust, bearing date April 10, 1871, of al


her estate, real and personal, with the exception


of her interest in the ava trade, to S. B. Dole


IN which trust deed it was expressly declared that


the said Trustee shall hold the said "real and


personal property and use the same with the


issues, rents and profits thereof for her benefit


according to his best Judgment, with full power


to convey or mortgage the whole or any part oI


the same, as 10 bis judgment he shall think neces-


sary for the benefit of the said estate or the said


grantor, and after the death of the said grantor


to convey the said real and personal property, or


whatever part of it then remaining in his hands


to the heir, or heirs of her body, or according to
the tenor of my WILL if l leave valid will, in fee,
or if neither, to my heirs, according to law"


1t further appears that Napua Zupplien mar
ried Kaluahne on the 18th of May, 1871 that
previous to marriage she had incurred debts to
Mclunery for about the sum of 5000, and to
II. Dimond for the sum of $500, and secured the
same by mortgage on her real estate that Ma
pua Zupplen Kauahine died intestate on the
24th of September, 1871.


The questions submitted are the following: l.
| Upon the death of the said Napua, notwith-
standing the deed Of trust aforesaid, did the
personal property belonging to her estate, abso-


utely vest in the husband, Kaluahine, and did
his obligation to pay the debts cease?
2. After the death of the said Napua. is her
husband, Kauahine, responsible for her debts,
especially those contracted before marriage and
secured by mortgage on her own real estate?


The first question which arises in this case
is, the personal property in the hands of the
trustee liable to pay the debts of the gruntor
contracted prior to the marriage Section
1886 of our Statues provides that the husband
shall be accountable in his own property for all
debts contracted by bis wife anterior to, and
during marriage, as well as to provide for and
support his wife. The husband, in virtue of his
marriage and in consideration Of the responsible
ties imposed on him by law, shall be the virtual
owner of the movable property belonging to the
wife anterior to marriage and accruing to her
after marriage, and the same shall be liable for
his own private debts; and he shall have the
enjoyment of the real estate, but upon her death
he shall cease to have control of the real estate.
al ba hall L.. l..
there is legitimate issue of the marriage within
the age of legal majority, then the husband shall
continue to enjoy curtesy in said property until
such issue shall attain majority when the same
shall descend to her heirs


The real estate is not liable to be sold for the
husbands debts, whether contracted in his own
behalf solely or for the use of his wife after mar
rage. But it is liable for the debts of the wife |
contracted by the wife before marriage, if no |
property of the husband can be found to satisfy |
the same.


By the Statutes, the husband is accountable in
his own property for debts contracted by the
wife anterior to marriage. The Statute does not
declare that it shall cease on the death of the
wife. By what authority then can the Court so
adjudge? We are of opinion that it is our duty
to give Interpretation to our Statutes according
to their terms.


There is no doubt that at common law, the
liability of the husband for debts of the wife
dun sofa, ceased at her DEATH But
by our Statutes there is no provision to that
effect and are disinclined to give this inter
Dretaton to the case. But even should we give
his Interpretation, it could not apply to the
present case. The personal property consisted
mainly of chooses in action in the hands of the
Trustee as appears by the trust deed referred to
n the submission, and not reduced to possession.
Kent says that if the wife leaves j
hoses in action not reduced to possession in the {
7ifes lifetime, the husband will be liable for her
ebts, dun s0ld, to that extent for these chooses c
n action will be assets in his hands" But as (
hey have been and are now IN the hands of the q
rustee, we hold that he would have been justified 1
J applying the proceeds to the payment of the '
ebts Of the grantor, contracted before marriage il
he responsibility of payment rests upon the v
'ustee, that he pay no debt not legally due. He '
a. NtSNth WIN ihiA pohtlS u uldudEe Tile
state for the best interest of the grantor, and +
ter her death to convey the real and personal a
roperty remaining in his hands TO her heirs, ac fl
,rding 10 law, in case she did not make will Il
The debts referred to are still due and unpaid p
ID we are of opinion that the personal property p
the hands of the trustee should be applied to "
eir payment. And there can be no doubt that. fC
or to her death, he had full powers to pay said 10
,bts from the personal property IN his hands, hl
r he had the large discretion of managing the y
operty according to his best Judgment II
The husband has the prior right of appoint ca
ent as administrator although the Judge for al
tisfaetory cause may disregard it, But the 7
nstee would be justified in declining to sur bt
nder the property to any one unless legally in
thorzed to receive it. And it could make no q
ference with the estate whether the debts were
id by the trustee or the administrator the
suit would be the same to the husband We ne
gard the personal property in the hands of the 'n
lstee as q fund from which to pay the debts of co
e wife incurred dun sola, and we regard it the %
ty of the trustee as within the purview of the an
lstee deed to pay all debts Of the gantor. to TIC
move all obligations from property in his 81