Opinion
No Number in Original
October 8, 9, 10, 1906, Argued . November 1, 1906, Decided
Holmes & Stanley for the heirs.
Smith & Lewis and C. H. Olson for the executors.
The rule against perpetuities is law in Hawaii, being a rule of the English common law which is declared in the Judiciary Act of 1892 (R. L., Sec. 1) to be in force here. By that rule the direction in Galbraith's will for a division of the trust fund is invalid unless by the provisions of the will the division must be made by the end of lives in being and 21 years thereafter. If the will, when construed with reference to all its provisions, requires perpetual annuities to be paid out of the income then the fund which is placed in trust for supplying the income cannot be divided and the direction is futile for dividing the fund at a time which might never arrive and, at all events, would be too remote under the rule. Unquestionably a trust can be created for payment from the income of a trust fund of annuities to certain persons for life and either to their heirs forever or for a term of 21 years after the death of the last surviving annuitant and providing in the latter case for division of the trust fund and accumulated income among the heirs at the termination of the trust. Now if the testator had meant that a division be made at the time required by law, and placed the residue in trust for that purpose, as well as to provide for the annuities, but did not know how long the trust would continue, meaning by "trust" not only the payment of the annuities but the division of the trust fund, might he not well have said that the residue should "be placed in trust for as long a period as is legally possible," and that "the ending of said trust should take place when the law requires it," meaning that the fund should be divided then, or, as the will reads, "on the final ending and distribution of the trust"?
On the other hand, if he meant, as contended by the executors, to make perpetual annuities and to provide for a division of the trust fund only if and when the law should interfere and put an end to them, would he not naturally have made some direction for disposing of income which he must have foreseen might not be used for the annuities? If he meant that the annuities should continue to be paid as long as was legally possible what occasion was there to say that their payment should end when the law required? Does he not mean to include in the trust which is to be concluded then, something more than payment of annuities, namely, distribution of the fund? There is no reason to infer from his language that he thought that the residue might legally remain forever undisposed of or that he wished such result if it was legally possible.
"Questions of this nature, like all other questions arising upon wills, depend upon the intention of the testator, to be collected from the words of the will, not, of course, as I understand the law, in the sense that the Courts are to be governed by the strict literal interpretation of the words, but in the sense that they are to gather from the words the intention of the testator, and to gather it not by speculation or conjecture as to what the testator may have intended, but by a sound and reasonable construction of the words which he has used. In determining the question before us we must therefore, in the first place, carefully examine the dispositions of this will." Hedges v. Harpur, 3 De G. & Jones, 134.
"The first thing to be looked for is the intention of the testator, and that is to be collected from the tenor of the instrument -- the motive, if any, disclosed -- the object sought to be attained -- and all the circumstances that appear to have been in the knowledge and mind of the testator. Even the use of artistic words, if used inartistically, in an inartistic instrument, will not necessarily control the intention otherwise manifested." Sackville West v. Holmesdale, 4 Eng. & Ir. Ap. Cas. 570.
"Moreover, it is against the settled rules of construction to strike out any words from a will because they offend against the perpetuity rule. For all purposes of construction, the will must be read as if no such rule existed. Any dispositions which, so reading and construing it, are found to be the testator's wishes must be taken to be his wishes, and if those wishes offend against the rule, the gifts would fail, and must fail accordingly; but they are not the less part of his will, and to be resorted to as part of the context for all purposes of construction, as if no such rule had been established." Heasman v. Pearse, L. R. 7 Ch. Ap. Cas. 283.
To these established rules it may be added that in arriving at the testator's intention provisions are not to be disregarded merely because they lead to unforeseen results unless such results would be plainly subversive of the clearly expressed objects of the testator, in which case, if the words are fairly susceptible of a meaning which is consistent with those objects, that meaning ought to be preferred.
The will clearly expresses the testator's twofold purpose that the residue of his estate, after payment out of its income of certain annuities, should be distributed among those entitled to the annuities at the time of the distribution. There is nothing in the will to justify the inference that he meant that annuities should be payable to heirs indefinitely or forever or that "the said trust," the end of which was to "take place when the law requires it," included merely the payment of annuities. The trust was intended to accomplish the twofold purpose of payment of annuities and distribution of the trust fund coincident with the end of the trust.
The word "trust" is used in the will with different meanings, the direction that the residue is "to be placed in trust" meaning that the residue is given to the trustee afterwards appointed; the words "to be placed in trust for as long a period as is legally possible" meaning that the residue is given to the trustee to hold in trust for that period; the direction "the termination or ending of said trust to take place when the law requires it under the statute" meaning that the trustee's holding is then to terminate and the performance of its duties end. If the trust fund is to be divided by the trustee when he ceases to pay annuities the law fixes the time when the division must be made by him. A trust to pay annuities as long as the law allows and then to divide the estate limits the time of the division if the words mean "as long as the law allows consistently with a division." This meaning would effect the testator's purpose that his property be divided while any other meaning which has been suggested would defeat that purpose and would either leave the estate to go to the heirs at once, or else subject to the annuities for life only if not also subject to perpetual annuities, the value of which could now be determined and paid over. In order to attach to the testator's language a meaning which would bring any of these unintended results it would be necessary to infer that he thought that there was some law which would terminate the annuity payments. While he had, as many persons have, a hazy notion about the duration of a trust, and may have thought it was to the trust instead of the gift over that a limit of time is made by the law, there is less reason for supposing that he was all wrong about this matter than for thinking that he meant to bring all his directions within the operation of the trust which he provided.
We construe the will then to mean that the residue was to be placed and held in trust as long as should be legally possible prior to its distribution and that the annuities should cease and the distribution be made ending the trust at the time required by law. There are many reasons for this construction in addition to those above mentioned. The expression "trust fund" implies that not merely the residue is intended to be divided but also the unapplied income accumulated at the time of the division. In Draper v. Palmer, 1 N.Y.S. 116, 120, the same words, when used in a trust deed, were held to be "intended to embrace, not only the original property included in the trust, but any subsequent property that might have been added thereto, including also the accumulations." In Olivat v. Wright, L. R. 1 Ch. Div. 346 (1875), a devise was made to a husband for life "and after his decease to be divided amongst my five children;" upon any of the children dying without issue the share of such deceased child was to be divided equally among the surviving children. Per James, L. J., "Can there be any doubt that 'after his decease' means the time when the estate for life comes to an end and when the property is to be divided? * * * According to the plain and natural meaning of the words this can only mean that immediately after his decease the executors and trustees are to see that her property is actually divided among her five children. * * * Any other construction would lead to so many absurdities and contradictions that I cannot bring myself to entertain any doubt whatever as to what the intention of the testatrix was."
As a matter, not of law only, but of presumed intention, undoubtedly the income of a gift of mixed real and personal property would go to the donee. It is urged that, since by Hawaiian statute the heirs of the realty who at common law would receive the income in such cases, if not otherwise disposed of, are the same as the distributees of the personal property of intestate estates, this court is at liberty to say that the income of the trust fund in this case, so far as not required for the annuities, would go to the heirs. This view would require the unused income of each year, varying, of course, as it might do from year to year, to be paid to the heirs. And we are asked to order that a sufficient sum be set aside to produce, on reasonable estimate, the income required for payment of the annuities and to direct that the residue of the trust fund be taken by the heirs as intestate property. The objections to this course appear to us to be insuperable. The entire residue is placed in trust for the purposes named by the testator and for an ultimate division, not merely of the residue, but of the trust fund, among the heirs of certain of the annuitants. The fact that at present so large a part of the income is not required for the annuities would naturally have led the testator, if he had wanted the surplus to be taken out of the trust fund and used for any other purpose, to have made his directions accordingly. There appears to us to be a clearly implied trust then to allow the income to accumulate, but the accumulation of the income can continue no longer than the rule against perpetuities allows the postponement of the vesting of a gift of any other property.
We do not sustain the contention, which is strongly urged on behalf of the heirs, that there is uncertainty as to the lives in esse during which the final distribution of the trust property is to be held in abeyance. The courts having once held that a fee could be made to take effect upon the death of the life tenant and then when a child of the life tenant should become of the age of legal majority so as to be able to dispose of the fee, went on to hold, as is shown by the history of the development of the rule against perpetuities, that the fee could remain in abeyance during any number of lives in esse and that they might as well be lives of persons having no interest in the property, and, finally, that the vesting of the property might be postponed for a term of 21 years afterwards. In this case the lives clearly intended are those of the annuitants mentioned.
Concerning the right of the Hawaiian Trust Company to take as trustee, as held in the matter of the will of Stephen Girard, Vidal et al. v. Girard's Executors, 43 U.S. 127, 2 HOW 127, 11 L. Ed. 205, "Neither the heirs nor any other private person could have any right to inquire into or contest the right of the corporation to take the property or to execute the trust." The statute, R. L., Sec. 2535, authorizes the incorporation of joint stock companies "for the purpose of carrying on any business or undertaking, either mercantile, agricultural or manufacturing," or a real estate business, "or otherwise, for which individuals may lawfully associate themselves (excepting banking and professional business)." This court held in Hackfeld v. King, 11 Haw. 5, that articles of association could properly include not only agricultural, manufacturing and mercantile pursuits but "the doing of all things and the transaction of all business that may be lawfully done in connection with the purposes aforesaid or any one of them," and said, "The businesses or undertakings which are forbidden by this statute and which the minister may reject are those for which it would be unlawful for individuals to associate themselves, and banking and professional business." This would certainly authorize the incorporation of the Hawaiian Trust Company for the purpose of doing a trust business mentioned in its articles of association. We do not think that it would be proper now to adopt a different view of the statute.
We have thus answered in substance all the questions submitted which can now be settled. Whether the trust fund is to go to the heirs of the annuitants proportionately, meaning that the representatives of each annuity take the share of the fund determined by the ratio between the annuity and the aggregate sum of the annuities, or equally without regard to such ratio, are questions which cannot be adjudicated now.
There is and can be no controversy suggested between the heirs and next of kin of the sister Eliza, recently deceased, as they are the same persons. Under the decision in Thurston v. Allen, 8 Haw. 392, we have no occasion to consider the effect of the rule in Shelley's case if applied to the annuities payable to persons named and their heirs.
In reaching the foregoing conclusions we have received great assistance from the admirably clear and thorough presentation of the case which the attorneys of these parties have made. All the cases cited have been examined carefully although with few exceptions we have not thought it necessary to refer in our opinion to those which support the results we have reached nor to express, further than we have done, our reasons for declining to accept, as applicable to the facts of this case, the cases cited in support of opposite conclusions. We append to a statement of the case a full summary made by the parties of their contentions on the points herein decided.
A decree may be prepared conforming to our opinion above expressed.