18 Haw. 342 | Haw. | 1907
OPINION OF THE COURT BY
This is an appeal by plaintiffs as trustees from a decree sustaining demurrers to a bill in equity for advice in connection with the will of James Campbell. It appears from the bill that James Campbell died on April 21, 1900, leaving a widow and four daughters, two of which daughters have since reached majority and married and had children; that his will, a copy of which is attached to the bill, was admitted to probate on June 26, 1900, and letters testamentary were issued to plaintiffs as executrix and executors thereunder; that by February 10, 1902, the executrix and executors had paid all legacies, debts and expenses; that on August 25, 1902, the executrix and executors filed their final accounts and petitioned for an order of distribution and discharge which, as amended and supplemented for various causes alleged, were not approved and granted until July 3, 1905, the executrix and executors being directed by an order of that date to distribute to themselves as trustees under the will all of the property in their hands belonging to the estate and that they be discharged upon filing their receipt for the property, which receipt was filed on July .28, 1905; that after their discharge they sought the advice.of the court and filed a bill to construe the will in certain particulars, a copy of the decision in which on appeal being attached to the bill and reported in. 18 flaw. 34; that this court decided, among other .things, that the widow and children were not entitled to share in the income provided for in paragraphs 9 and 10 of the will
As the decision in the former suit (18 Haw. 34) was expressly made a part of the bill in this case, there is no doubt but that the record and briefs in that case may be looked into in order to ascertain just what was actually submitted and decided. In that case there appeared most of the facts that are set out in the bill in this case. The will is sufficiently set forth in the decision in the former suit, so that it will be unnecessary to again set it out. One of the questions submitted in that case was “are the children and widow entitled to any share of the net income provided for in the 9th and 10th clauses of the will pending the closing of administration,” it appearing from the facts in that case but not in the bill that all of the debts, expenses and legacies were paid by February 10, 1902, so that there was no reason why the administration should not then have been closed and the estate distributed, and it also appearing that the administration was actually closed and the property ordered distributed on July 3, 1905. In response to that question the court said: “We have no hesitation in answering chis question in the negative. It is only when the administration is closed and the estate is distribtited to the trustees that either the widow or any of the children begin to share in the income and it is only from that time that the accounts are to be kept separate and the
But, in view of all the circumstances, and of the apparent hardship upon three of the defendants, we will discuss the matter as though it never had been passed upon before.
The question is, from what* date are the children and widow entitled to their proportions of the net income referred to in the 9th and 10th clauses of the will ? The first paragraph of the will directs the executrix and executors “to reduce to possession all and singular my estate, real, personal and mixed, wheresoever situated; and to manage, control, care for and collect the income and revenue thereof pending the distribution thereof,’ .as afterwards provided for. This clause would not admit of the
It is argued that rhe testator never intended the children and widow to be deprived of income for more than three years after the administration should have been closed and the decree of distribution made. The difficulty with that contention is that he has said in clear and'unmistakable language what income is to be. paid the widow and children and when its payment is to begin. That he did not intend that the widow and children should be without income at any time probably is so, and he provided against just such a contingency by directing a payment of family allowance during administration and of family m'aintenance and income after administration.
The case of Lovering v. Minot, 9 Cush. 151, is relied on by appellants. All that that case decided was that where the
The claim of the grandchildren, made by their guardians ad litem, that the date from which income should be computed and paid to the life tenants should be July 28, 1905, which was the date of the filing of the receipt by the trustees for the ¡property, is without merit, for the reason that the testator has made the date of the decre’e of distribution the one to be followed.
All the other defendants except the grandchildren, although strictly neither appellants nor ap23ellees, were allowed to present arguments in support of appellants’ position.
There was no error in sustaining the demurrers.
The decree appealed from is affirmed.