25 Haw. 22 | Haw. | 1919
OPINION OF THE COURT BY
This is a bill in equity for an accounting. Joshua R. Williams died June 28, 1879, and left a will in which he devised to W. R. Castle all of his estate in trust to “manage and invest the same in such manner as he may judge to he expedient and at any time to sell any portion of my estate, real or personal, without obtaining any order of court and to reinvest the same and to retain entire control of said estate during the term of this trust. And to pay the income of said estate to my wife Kaaikaula Wil
On August 23, 1901, plaintiff notified W. B. Castle of the conveyance of October 21, 1899. At the time of the conveyance to plaintiff the lands described in the complaint were leased partly to the Honolulu Sugar Company and partly to Chow Foo at an annual rental of $35. On March 22, 1902, W. B. Castle sold said lands to the Woodlawn Fruit Company for $1313.30. On this state of facts L. L. McCandless brought this bill for accounting against W. B. Castle, trustee, ánd joined all of the beneficiaries of said trust as parties defendant, claiming that he is entitled to the moneys received by said trustee from and for the property which the other defendants attempted to convey to him by the deed of October 21, 1899.
The defendants demurred to the bill for want of equity and the circuit judge reserved to this court the question whether the demurrer should be sustained. This court in 19 Haw. 515 answered this question in the negative, holding that a deed which purports to convey more than the grantor owns is nevertheless operative as to all of the interest which he does own and that the deed of October 21, 1899, operates in equity as an assignment to the plaintiff of the interest at lehst of Joshua, Josephine and Georgiana in the income derived from the lands in question. The court did not decide who are the remaindermen, whether the remainders are vested or contingent, whether Othello’s interest was pur autre vie or only during his own life, whether at his death his heirs or devisees took anything, or whether the trustee can be required to account for any share of the income which accrued prior to the date of the notice to him of the assignment. After the demurrer was overruled the defendants
An accounting from defendant W. R. Castle, trustee, is ordered for four-fifths of the income of the trust estate created by the will of Joshua R. Williams, deceased, from August 30, 1901, to March 22, 1902, and four-fifths of such proportionate share of the consideration received by defendant W. R. Castle, trustee, from the Woodlawn Fruit Company, Limited, as the value of lands described in R. P. 764, L. C. A. 2043 bears to the aggregate value of the premises sought to be conveyed by the said deed of W. R. Castle, trustee, to the Woodlawn Fruit Company, Limited, as amended, with interest thereon at the rate of eight per cent, per annum from March 22, 1902, to the date heréof; that he have an accounting from the defendant W. R. Castle, trustee, of one-half of all the rents
The appellants’ first contention is that there is no evidence on Avhicli to find that the interest of the defendants other than W. E. Castle, trustee, in any portion of the trust fund held by him, Svas assigned to appellee by the deed of October 21, 1899. This we think is not an open question at this time. This court, in answering the reserved question as to Avhether the demurrer to the bill should be sustained, held in effect that the deed itself is evidence of that fact and should be given that effect unless at the trial facts were disclosed Avhich Avould render the enforcement of the assignment harsh and inequitable or impracticable. It was pointed out by Avay of illustrating Avhat might arise to make the enforcement of the assignment inequitable that the income derived in one or more years from the property here involved might be necessarily applied in AAdiole or in part to losses suffered in connection Avith other portions of the corpus of the estate, in AA’hich eArnnt the trial court Avould be able to protect the trustee as Avell as all other parties concerned. Under this decision Ave think it is clear that the plaintiff acquired whatever interest, legal or equitable, the grantors in the deed of October 21,. 1899, above referred to, possessed in the lands therein described, and is now entitled to an accounting on that basis unless facts have been disclosed which would render such a decree harsh,
In order therefore to determine what the plaintiff’s rights are we must determine what the interest of each of the grantors was. In Williams v. Castle, 19 Haw. 337, 339, it was held that each of the five children of the testator named in the will acquired thereunder an equitable life interest, in the income of the property the title of which is held by the trustee subject to division upon the happening of an event still in the future. They each also owned in fee simple an undivided 1/36 interest in L. C. A. 2042, inherited from Kaaikaula, which the trustee assumed to hold, lease and dispose of as part of the estate. Three of those five children are grantors in the deed in question. We have already pointed out that this court held, when this matter was before it on the question of overruling or sustaining the demurrer, that the deed in question operates in equity as an assignment to the plaintiff of the interest at least of Joshua, Josephine and Georgiana in the income derived from the lands in question (McCandless v. Castle, 19 Haw. 515). We therefore conclude that from each of these three children the plaintiff acquired a right to the income which such child was entitled .to receive from that portion of the trust estate represented by the lands and from the money received by the trustee for the lands forming a part of
Lydia’s interest in L. C. A. 2012 was the same as her brothers and sisters and was conveyed by the deed of October 21, 1899. She had no interest in the trust estate.
Othello’s interest in the trust estate is not so easy to ascertain. His interest in L. C. A. 2012, like the other principal grantors, was an undivided 1/36 in the fee simple, subject to the dower interest of the stepmother Kahalauaola. There can be no question that had he lived he would have been entitled to the 1/5 of the income of the trust estate so long as any of the children of the testator survived, but did he possess such a right as was not extinguished by his death? This depends of course upon whether the interest, in the income of the estate which a grandchild was to receive under the terms of the will upon the death of his parent was pur autre vie or only during the life of such grandchild if such grandchild should die, as Othello did, before the death of the survivor of the testator’s children. The intention of the testator when it can be ascertained will be given effect. Harrison v. Judd, 3 Haw. 421; Thurston v. Allen, 8 Haw. 392.
The will directs the trustee to pay the income to the wife and five named children in equal shares during the term of their natural lives, and then directs that “upon the decease of any of my said children, his or her share is to be paid to his or her children, if any, by my said trustee until the decease of the survivor of my said wife and children, when my estate shall be divided.” The will does not provide who shall be the recipients of the estate upon its division, nor is there any express disposition of income previously paid to a grandchild who dies before the death of the last survivor of testator’s wife and children. We are trying to ascertain the intention of the testator as to the disposition of income which became pay
But the circuit judge awarded plaintiff four-fifths of the consideration received by the trustee for the land, one-fifth of which was evidently awarded upon the theory that Othello had a vested remainder in both the income and the corpus of the estate, Avhich passed to the plaintiff by Othello’s deed. We are unable to agree with the circuit judge in this respect. The title by the express language of the will is in the trustee together with the right
The other three-fifths interest in the consideration received by the trustee for the lands involvéd which was awarded to the plaintiff was evidently awarded on the theory that this interest was acquired by the deed of Joshua, Josephine and Georgiana. They had no interest in the corpus of the estate and therefore could convey none.
The defendants other than the trustee have pleaded fraud and misrepresentation. by plaintiff, alleging in substance that he fraudulently procured said deed to be executed by representing to them that they were only conveying to him their interest in property they had inherited from their mother, whereas in fact their deed to him conveyed also the lands devised by their father Joshua R.
The plea which is relied upon to raise the issue of res jud.ieata is by the defendant W. R. Castle, trustee, and alleges in substance that he was by decree of the probate court of date April 23, 1907, discharged as executor and his accounts as such executor up to December 30, 1906, approved, settled and adjusted and he as executor ordered to turn over the residue of the estate to himself as trustee; that in said accounts the income from said land and the proceeds thereof were accounted for and paid over to the sundry parties as beneficiaries under the will; that plaintiff had knowledge of the rendition of said final account and the settlement thereof and made no objection thereto; that the distribution was made in good faith among the devisees named in said will. Defendant suggests that it would be inequitable to compel him to account to plaintiff for said income paid over under order of the court.
The plaintiff asserts that this is not a plea of res
It is not alleged that the plaintiff was a party to the probate proceedings nor is it alleged that he is in privity with any one who was a party thereto. The nearest such plea comes to alleging such facts is contained in the allegation to the effect that the plaintiff knew of the rendition of the final account and the settlement thereof and made no objection thereto. Whether plaintiff was a .party to the probate proceeding is certainly a material fact in the determination of the question of whether he is bound thereby. A material fact, if not alleged, is presumed not to exist. (31 Cyc. 86.) We conclude that the plea falls short of raising the issue of res judicata.
To summarize our conclusions, we hold that the plaintiff is entitled, during the life of Joshua Williams, a son of the testator, to one-fifth of the income received by the trustee from apanas 1 and 2, L. C. A. 2043, R. P. 764, which were devised to him, and one-fifth of the income received by him from the undivided one-third interest in apanas 1 and 2, L. C. A. 2042, R. P. 762, conveyed to him as trustee by Opunui et al. from and after August 23, 1901, and one-fifth of the income received or which may he received by the trustee during the life of the said Joshua from the money received by said trustee for said
The decree appealed from aAvarded plaintiff certain interest in the consideration received by the trustee for the lands sold to the Woodlawn Fruit Company. He is clearly not entitled to this, hut in lieu thereof is entitled to the income arising therefrom. The trustee had the title to the estate, the right to sell it and to reinvest the proceeds paying the income to the designated parties until the death of the survivor of testator’s wife and children. The trustee is liable to parties entitled to the income only for the amount actually received by him as income after deducting his expenses and commissions properly chargeable. Under these circumstances it was proper for the circuit judge to appoint, as he did, a master to take, make and report to the court the account of the income re
The cause is remanded with instructions to modify the decree to .conform to the views herein expressed.