26 Haw. 417 | Haw. | 1922
OPINION OF THE COURT BY
These are cross-appeals by the life-tenants and re-maindermen under the will of John Ena, deceased, from a decree in equity. The salient features of -the case are as follows:
On or about the 7th day of May, 1921, Father H. Valentin and the Hawaiian Trust Company, Limited, trustees under the will and of the estate of John Ena, deceased, filed in the circuit court of the first circuit of
Subsequent to the death of the testator and to the admission of his will to probate the widow declined to accept the provisions of the will in her behalf and elected to take dower under the statute. Thereafter proceedings were instituted for the admeasurement of her dower, on which proceedings a final decree was entered reciting that the realty in question was of the value of $155,491; that the dower interest “cannot be set apart to the widow by metes and bounds for her lifetime without great injury to the owners” and that the “present value in gross of said dower interest is the sum of $37,919.31,” and awarding her the sum of $37,919.31 in gross as and for her dower interest in her husband’s real estate, the said amount to be paid by the sum of $31,919.31 in cash and the balance,
On the 4th day of September, 1912, the widow received from the trustees the sum of $29,000, money received by them from the mortgage; the sum of $2919.31, cash on hand paid her from the principal of the trust estate, and also a conveyance in fee simple of the Miller street property, valued at $6000. This mortgage was wholly discharged on the 30th day of July, 1920, by the trustees, the principal sum of $29,000 being paid out of the corpus of the estate and the interest on the mortgage, amounting to $13,457.73, being paid from the income of the said trust estate.
The provision made by the statute for a widow is that she “shall be endowed of one-third part of all the lands owned by her husband at any time during marriage, in fee simple, in freehold, or for the term of fifty years or more, so long as twenty-five years of the term remain unexpired,” and that “she shall also be entitled, by way of dower, to an absolute property in the one-third part of all his movable effects, in possession, or reducible to possession, at the time of his death, after the payment of all his just debts.” R. L. 1915, Sec. 2977.
With the nature of the widow’s interest in personalty we are not here concerned for the undisputed evidence is that this widow in due course received from the trustees under the will of her deceased husband her share in the personal property. In this case, and also in Equity Case
From the record in the proceedings (Equity No. 1798) it clearly appears that the amount awarded ($37,919.31) was by the court found to be the then present worth, according . to well-known mathematical tables, of the annuity which would be received by the widow during the remainder of her life (taking her expectancy of life from recognized dower tables), consisting of eight per cent, interest (our statutory rate) upon one-third of $155,491, the value of the realty. In other words the court of equity proceeded upon the view, and correctly,- that the widow’s was a life interest only in one-third of the realty and converted it into its then present worth in terms of money.
No provision was made in the decree, and none was asked for by the parties then before the court, as to how the actual cost of wiping out the widow’s dower interest at that time was to be ultimately paid, that is to say, as to who was to ultimately bear that expenditure. Neither
The case is at first thought susceptible of confusion as to what the fundamental situation was which the decree ashed for in the present suit is to replace. Some at least of the argument presented to us would seem to have been based upon the theory that the mortgage is the correct starting point and that the existence of the mortgage and the payments of interest and principal thereunder are what is to be supplanted or provided for by the decree now sought. The mortgage, however, was a mere temporary expedient for the raising of the funds necessary to carry out the award in favor of the widow and the fact that it was placed upon the corpus of the estate and that its interest was paid out of the income of- the estate should not be permitted to alter the preexisting rights of the parties. It is true that as a general rule when there is an existing mortgage on the property left by a decedent and by the will the income is left to life-tenants and the principal, to remaindermen, the principal of the mortgage must be paid by the remaindermen and the interest by the life-tenants. 16 Cyc. 634, 635; 21 C. J. 958, Sec. 94; 17 R. C. L. 639, 640, Sec. 29; Fosdick v. Lyons, 56 N. Y. S. 942, 943; Upton v. Merriman, 116 Minn. 358, 365; Ivory v. Klein, 54 N. J. Eq. 379, 382. This is so because in this way the evident intent of the testator is carried out. In such a case the corpus which is devised is in reality,
As contended by tbe life-tenants, when a widow declines to accept under tbe will and elects to take statutory dower her election should not be permitted to disturb tbe testator’s directions any further than is absolutely essential. Tbe will, in other words, must be carried out as nearly as possible. In tbe present instance no real difficulty arises out of this consideration. Tbe testator provided with clearness that be wished tbe income of bis estate to go to tbe life-tenants and be provided with equal clearness that be wished tbe corpus of tbe estate—all of tbe corpus—to be preserved for, and to go to, tbe remaindermen. Tbe life-tenants contend that “tbe chief aim and purpose of tbe testator was tbe welfare of bis own children rather than that of their descendants;” but in bis will be has clearly expressed bis own measure of bis affections and solicitude for tbe two classes of descendants and that is by giving all of tbe corpus to the remaindermen and tbe net income only to tbe life-tenants. Tbe provision for tbe remaindermen is as clear as is tbe other.
Just prior to tbe rendition of tbe decree in Equity No. 1798, upon whom was tbe burden consisting of tbe widow’s right to dower in tbe realty? Undoubtedly upon tbe life-tenants alone. She bad a right to elect to take statutory dower and she did so elect. But she did not by that election acquire any part of tbe corpus of tbe estate. She thereby acquired merely tbe right to tbe use or the
Whether the court in Equity Case No. 1798 had the power to order a sale or conveyance of the land in order to pay out of the proceeds thereof the amount awarded to the widow or had the power to authorize the trustees to place a mortgage upon the principal of the estate for the same purpose need not be considered, for the mortgage has been long since paid and discharged and the realty mortgaged is still intact and available for the remainder-men, the $6000 represented by the conveyance of the Mil
If at tbe time of tbe filing of tbe bill and of tbe rendition of tbe decree in Equity No. 1798 there bad been in the bands of tbe trustees accumulated income (ordinarily payable, of course, to tbe life-tenants) more than sufficient to meet tbe amount of tbe award in favor of tbe
It does not follow that these charges should now he made against the life-tenants in such a way as to deprive them of all of their income from the estate pending complete payment of the amounts heretofore erroneously charged. It is possible, and the remaindermen have in open court consented to the taking of this course, for the trustees to charge the life-tenants, at each annual or other customary distribution period, with such a portion of the amount to be ultimately made up as will under all of the circumstances be reasonable and at the same time serve the purpose desired of reimbursing and protecting the remaindermen.
The sum of $5441.89 was assessed by the government against certain property of the trust estate situate at Kalia, Waikiki, for street improvements made at Kalia by the City and County of Honolulu, of which sum $1632.57, or three of the annual instalments, have been paid from the corpus of the trust estate and interest on this assessment, amounting at the date of this petition to $555.07, has been paid from the income of the trust estate.
There was also assessed the sum of $7791.64 by the City and County of Honolulu for street improvements against certain of the real property of the trust estate at Iwilei. This assessment has been paid from the corpus of' the estate and the interest thereon, amounting to $731.49, has been paid from the income of the estate.
Neither party attacks the decree appealed from in so far as it -relates to the apportionment of the street improvements as between the life-tenants and the remain-dermen with reference to improvements on the one hand that were temporary in their nature and to improvements on the other hand which would outlast the lives of the
The general rule is well established that where under a will the testator directs the income to be paid to certain tenants for life and the principal to be reserved for remaindermen the taxes on all of the property, whether productive or non-productive, are to be borne by the life-tenants unless the will provides to the contrary. In re Albertson, 113 N. Y. 434, 439; Peck v. Kinney, 143 Fed. 76, 80; Guthrie v. Wheeler, 51 Conn. 207, 212; 2 Perry on Trusts (6th ed.), Sec. 554; In re Morton, 74 N. J. Eq. 797, 801; Clark v. Middlesworth, 82 Ind. 240; Martin v. Kimball, 96 Atl. (N. J.) 565. This is simply another way of saying that when the testator leaves the income of his property to life-tenants he means the net income and also means that the principal shall be preserved intact for the remaindermen. In the case of Montgomery, 165 N. Y. S. 1069, 1070, cited by the life-tenants, the court found that the intention of the testator as expressed in the will required payment of the taxes under the circumstances out of principal. So also In re Estate of Vermilye, 166 N. Y. S. 320, cited by the life-tenants, the court interpreted the will there under consideration • as showing that the intention of the testator was that certain interest on mortgages and other expenses should be paid out of the principal. In Hite v. Hite, 19 L. R. A. (Ky.) 173, cited by the same appellants, the court said that “the intention of the testator must govern” and found from the provisions of that particular will an intention that the taxes on unproduetivé property should be borne by the re-
There is a limitation to the above general rule to the effect that where the income from the productive property is not sufficient in whole or in part to pay the taxes of the nonproductive property such excess of taxes need not be borne by the lifeffenants out of their own separate property not derived under the will; and there is reason in support of that limitation. Those facts, however, do not exist in the case at bar. The income from the testator’s property, regarded as a whole, is more than sufficient to pay for the-taxes and other expenses of the whole and to still leave net income for the life-tenants.
It may be added that concurrently with, or immediately after, the payment of the special assessment for improvement taxes on the land in question (Lot No. 62) the land so assessed was converted into cash by sale at a highly advantageous figure. That very sale took the property out of the nonproductive class and rendered it productive, of interest. .For this additional reason the argument of the life-tenants cannot apply.
It is further contended on behalf of the life-tenants that the payment in one sum concurrently with the mak
The objection to the amendment of the original bill of complaint in this present suit cannot be sustained. The original bill prays for instructions as to (a) whether the whole of the sum paid by the trustees on the principal of the mortgage should be paid out of the principal or out of the income or should be apportioned between principal and income; (b) whether, if it should be held that the principal of the mortgage should be paid out of the principal of the trust fund, the life beneficiaries should reimburse the remaindermen; (c) whether the interest paid on the mortgage should come out of the principal or out of the income of the trust estate; (d) whether the interest on the improvement taxes should be paid out of the principal or out of the income of the trust estate; and (e) whether the principal of the improvement taxes should be paid out of the principal or out of the income of the trust estate. In the amended bill the prayers under (a) and (b) relate to the principal of the award instead of to the principal of the mortgage and the prayers under (c), (d) and (e) remained the same. In some slight respects the allegations of the bill, too, were amended so as to make them conform to the proof which had been adduced at the trial. The bill was properly amendable in the respects just mentioned. The general scope and nature of the bill was in no wise changed by 'the amendment. The cause of action, if such it may be called, remained the same. The original was a bill for instructions and so was the amended bill. The additional instructions requested in the amended bill were such as might properly have been asked for in the original bill. They were upon questions of importance, involving as much doubt as did the questions set forth in the original bill. The mere fact that the trustees had already acted to the extent of
The decree appealed from,- in so far as it relates to the expenditures for street improvements and the interest thereon, should be sustained; but on the subject of the sum paid to the widow for the extinguishment of her dower right the cause should be remanded for further proceedings not inconsistent with the views of this court.