25 Haw. 327 | Haw. | 1920
OPINION OF THE COURT BY
Cecil Brown, late of Honolulu, died in the year 1917, leaving an estate of the approximate value of $250,000, all of which was disposed of by his last will and testament. The will was duly admitted to probate and in. September, 1917, letters testamentary were issued to H. M. von Holt. After making certain bequests and devises the will contains the following clause: “All the rest, residue and remainder of my estate, real, personal and mixed, and wheresoever situate, I give, devise and bequeath unto my said nephew, Heinrich Martens von Holt, and to his heirs; the only charge on it being that if at any time after my death the estate is in funds and can pay the sum of two hundred and fifty dollars a month so long as my stepdaughter Irene K. Dickson is living, and my reputed daughter Mary K. Brown is living, that- one hundred and fifty dollars of said sum
As already indicated counsel for Mrs. Jarrett make no claim that the annuity of their client is not amply and fully secured by virtue of the order of the circuit court but they insist that the circuit court had no authority to make the order setting aside the bonds as security for the payment of the annuity and also that the court was without authority or jurisdiction to distribute said estate to von Holt individually but should have distributed it to him as trustee to be held by him as security for the payment of the legacy reserved to Mrs. Jarrett under the will.
It is obvious that the application of the rule contended for by appellant while affording her no protection or benefit whatsoever might work a great hardship upon the residuary legatee as well as a loss to the estate itself. The legatee’s estate would be withheld from him during the entire life time of the annuitant and the estate would be burdened with the expense of administration during that period. If an estate valued at $250,-000 must be held intact to insure' the payment of an annuity of $1200 per annum then the same rule would require that an estate of many times that value be retained intact for the entire life time of an annuitant to protect an annuity of a mere nominal amount. And if the annuitant happened to be an infant distribution of any part of the corpus of the estate might thus be delayed for three-fourths of a century or even for a greater period, dependent, of course, upon the tenure of life enjoyed by the annuitant. Such a drastic rule would
This same subject has heretofore had the attention of the courts and the uniform rule adopted is that where an annuity is payable out of the estate of a testator the court has jurisdiction to set apart sufficient to answer the annuity; that the annuitant is not entitled to have the estate of the testator realized upon and converted into money further than is necessary for the payment of his debts, funeral and testamentary expenses; after this has been done his right is limited to having the annuity sufficiently secured by the setting apart of such part of the estate as may be adequate for that purpose. 3 C. J. pp. 216, 217; 1 R. C. L. pp. 12, 13. A case similar to the one at bar was before the supreme court of judicature of England, Ch. Div., and that court announced the rule to be that “Where an annuity is payable out of the clear residuary estate of a testator the court has jurisdiction to set apart a sufficient sum to answer the annuity and to pay the remainder of the residue to the residuary legatee, and this jurisdiction will be exercised in a proper case notwithstanding the opposition of the annuitant.” Harbin v. Masterman, 1 L. R. Ch. Div. (Eng.) 351. See also Scott v. Leak, 12 L. R. Ch. Div. (Eng.) 570. The American rule seems to be the same. “A residuary bequest if given subject to payment of an annuity to another for life is charged with the annuity and before the property is delivered to the legatee the executors should set apart an amount sufficient to meet the annuity from the income.” Healey v. Toppan, 45 N. H. 243. See also Cummings v. Cummings, 146 Mass. 501, 508; Treadwell v. Cordis, 5 Gray 311, 351.
Counsel for appellant misinterpret, we think,' the import of the language used by this court in two opinions
The order appealed from is affirmed.