22 Haw. 78 | Haw. | 1914
OPINION OP THE COURT BY
By the will of tbe late George Galbraith Anne Jane Galbraith was given an annuity of $150 a year, the same being payable to her and her heirs. See 18 Haw. 52. She died unmarried at Belfast, Ireland, on or about the 3rd day of December 1908, leaving surviving her neither child, parent nor grandparent, but leaving as her next of kin surviving her a brother, six nephews, four nieces and three children of a deceased niece. In the case of Aihonua v. Ahi, 6 Haw. 410, it was held by Ohief Justice Judd, that in this jurisdiction under the statute of descent as it stood at that time the word “children” did not include the grandchildren of a deceased brother or sister, but that upon the death of an intestate leaving only a niece and a grandnephew, the niece would inherit to the exclusion of the grandnephew. In the case of Kahananui v. Maunakea, 20 Haw. 114, it was held, the statute having in the meantime been amended, tliat the word “children” included grandchildren of a deceased brother or sister so that grandnephews and grandnieces of an intestate would share in the estate with the decedent’s niece.
The Hawaiian Trust Company, Limited, trustee under the Galbraith will, filed in the court below a bill for instructions reciting the foregoing facts and averring that in reliance upon the statute as construed in the first case referred to and upon
The circuit judge held that the children of the deceased niece were entitled to take under the statute (R. L. Sec. 2509) the share which their mother would have taken had she lived, and a decree was entered instructing the trustee accordingly.
The only appeal taken and perfected from the decree is
The proper purpose of a bill for instructions is not to obtain the judgment of the court upon .the legality of a payment made or other act done, hut is to secure for a trustee the directions of a court of equity to guide him in executing the trust where there are conflicting interests and there is doubt as to the proper course to pursue in administering the trust or disposing of the fund, with the view to obviating future liability for pursuing a course that might turn out to be a mistaken one. See Bishop Trust Co. v. Oahu Sugar Co., 19 Haw. 183; Bullard v. Attorney General, 153 Mass. 249; Clay v. Gurley, 62 Ala. 12, 21; Griggs v. Vekhte, 47 N. J. E. 179, 181.
In the case at bar the effect of the decree is not merely to direct the action of the trustee for the future but to pass upon what had already been done. This, however, seems to have been brought about by the parties themselves. The decree entered in the court below was submitted by counsel for the children of the deceased niece and was approved by counsel for the other respondents. No objection to its form was made by the trustee, and it was responsive to the prayer of the bill in which the trustee asked to be instructed “whether it shall pay a proportionate share of the annuity bequeathed to Anne Jane Galbraith, as aforesaid, to said” children of the deceased niece
Thomas Galbraith, who, it was alleged, purchased the interests of certain of the nephews and’ nieces in reliance upon the decision in Aihonua v. Ahi, did not appeal from the decree so it will not he necessary to consider the point whether, having so purchased, it would he depriving him of property without due process of law; to now hold that those interests -are to he diminished in order to let in the children of the deceased niece.
Counsel for the appellant are in error in supposing that the two cases above referred to are in conflict. The earlier of the two decisions was rendered in 1883 by the' trial court in an ejectment case whereas the later was decided in 1910 by the supreme court upon a writ of error. There should be no doubt as to which -would be the controlling decision if they were in conflict though Kahananui v. Maunakea did not overrule Aihonua v. Ahi. In each ease the statute was construed as it existed at the time of the decision. There has been no amendment of the statute since 1898. Kahananui v. Maunakea was well reasoned, and, under the ruling there made, if, in the case at bar, the intestate had left a husband he would have been entitled to one-lialf of the annuity and the surviving brother and the children of the deceased brother, including his grand
Counsel for the nephews and niece contend that no provision of the statute of descent is applicable to this case; that the common law applies; and that by the common law one-half of the annuity would go to the decedent’s brother and the other half to the children of the deceased brother, including their clients, but excluding his grandchildren. Counsel for the children of the deceased niece contend that effect would be given to the spirit of the statute, which was intended to furnish a complete plan for the descent of property, and no violence would be done its language, by construing it to mean that in the event of an intestate leaving only brothers and sisters and their descendants, and no husband or wife, the entire estate would go to the brothers and sisters and their descendants; that as the statute furnishes a complete scheme governing the descent of property there is no occasion for resorting to the common law; but that if the statute does not apply the entire annuity would, by the rule of the common law, go to the intestate’s surviving brother to the exclusion of all these respondents.
In Barnitz v. Casey, 7 Cranch 456, 468, the supreme court held that where it is “perfectly clear” that the case presented is not within the statute, it “of course is a casus omissus to be regulated by the common law.” In the later case of Bates v. Brown, 5 Wall. 710, 716, the court quoted from Kent’s Commentaries that “In the United States the English common law of descents, in its most essential features, has been universally rejected, and each State has established a law of descents for itself.” And after quoting from the statute involved in that case, which does not appear to have been any more complete than the statute of this Territory, the court said, “We find here not a trace of the common law. These provisions are diametrically opposed to all its leading maxims. We cannot infer from their silence that anything not expressed was intended to
The provisions of the statute which bear directly upon the question are as follows:
“If the intestate be a woman and leave no issue, her estate shall descend one-half to her husband, and the other half to her father and mother as tenants in common, and if she leave no husband nor issue, the whole shall descend to her father and mother, or to either of them if only one be alive; if she shall leave no issue, ñor father, nor mother, her estate shall descend one-half to her husband and the other half to her brothers and sisters, and to the children of any brother or sister by right of representation.
“If the intestate shall leave no issue nor father, mother, brother or-sister, nor descendants of any deceased brother or sister, the estate shall descend to the intestate’s widow, if any; or in case the intestate be a woman, to her husband, if any.
“If the intestate shall leave none of the said relatives surviving, nor widow nor husband, the estate shall descend in equal shares to the next of kin in equal degree, but no person shall be entitled, by right of representation to the shares of such next of kin who shall have died; provided, however, that if the estate come through either parent of the deceased intestate, the brothers and sisters of that parent and their respective heirs shall be preferred to those of the other parent.” (R. L. Sec. 2509.)
Some of the reasoning in the opinion in Kahananui v. Mau
Decree affirmed.