FITCHIE V. BROWN, 211 U. S. 321 (1908)

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U.S. Supreme Court

Fitchie v. Brown, 211 U.S. 321 (1908)

Fitchie v. Brown

No. 47

Argued October 29, 30, 1908

Decided December 7, 1908

211 U.S. 321


Executors, parties to the action but who have not appealed, cannot be heard against a decree construing the will and determining the validity of trusts on an appeal taken by other parties.

The common law having been made applicable by statute in Hawaii, and there being no other statute regulating the subject, trusts must be valid as at common law, and the utmost extent of a testamentary trust is limited by ascertained lives in being at the time of its creation, selected by the testator but not necessarily having an interest in the property, and for twenty-one years after the death of the last survivor which must be ascertainable by reasonable evidence.

The testator's intent is to be sought and carried out if not illegal, and although the persons whose lives are to limit a trust may not actually be so designated in the will, it is sufficient if a class or number of lives are referred to so as to plainly indicate that they were selected for that purpose.

A testamentary trust to continue as long as possible " under the statute " is not void, because in Hawaii there is no statute, and the common chanrobles.com-red

Page 211 U. S. 322

law is applicable; the testator's intent being evident that the trust was to continue as long as legally possible.

The fact that the class limiting the duration of a common law trust is large -- in this case over forty -- does not render it void if it is otherwise legal.

A trust created for as long a period under the statute as possible held legal at common law and to be limited by the lives of annuitants mentioned in the will and evidently intended, although not so specified, by the testator as being the lives selected for the duration of the trust and twenty-one years after the death of the last survivor.

Where there are a number of annuitants constituting a class selected to determine the duration of a common law trust, the fact that there is a corporation among them will not render the trust illegal, as creating a perpetuity; the annuity to the corporation will cease on the expiration of the trust twenty-one years after the death of the last surviving individual annuitant.

In this case, surplus income, after paying specified annuities, should be accumulated until the termination of the trust and then distributed as part of the estate to those entitled thereto under the will.

Whether or not a trustee named in a will can act as such does not affect the validity of the will; in case he cannot act, the court can appoint a trustee to carry out the provisions of the trust.

18 Haw. 52 affirmed.

The parties to this proceeding agreed upon a case, without action, containing the facts upon which a controversy had arisen between them, and submitted the same to the Supreme Court of the Territory of Hawaii, conformably to the laws of that territory.

The court heard the case and made a decree therein, from which those named above as plaintiffs in the submission have appealed to this Court, but the defendants executors have not appealed.

From the agreed statement of facts contained in the submission it appears that one George Galbraith, who died at Honolulu on the fifth of November, 1904, while domiciled in the Territory of Hawaii, left a will, which has been duly admitted to probate in Hawaii, disposing of an estate of about $121,000 in personal property and $128,000 in real estate in Hawaii, and a small amount of real estate in Ireland. chanrobles.com-red

Page 211 U. S. 323

The will gave some pecuniary legacies to a number of people, relatives and friends, and then provided that --

"The balance, residue, or remainder of my estate is to be placed in trust for as long a period as is legally possible, the termination or ending of said trust to take place when the law requires it under the statute."

"I hereby nominate and appoint the Hawaiian Trust Company, Limited, of Honolulu, Territory of Hawaii, as trustee of the aforesaid balance, residue, or remainder of my estate, and they are to devote sufficient of the annual income derived from the same toward paying the following annuities, which are to be free and clear of all taxes, unto the following persons mentioned, namely [here follow the names of the annuitants and the amounts which they are to receive yearly]."

"All of the foregoing for life, and then to their heirs, save and excepted the last three persons; namely, Josie Fink, Emma Douglass, and Matilda Bailey, who are to receive only their annuities, and at their death, all their interests to cease."

"On the final ending and distribution of the trust, the trust fund to be divided equally amongst those persons entitled at that time to the aforementioned annuities."

On the same day, the testator made a codicil, in which he made some changes of the annuities, substituting for the annuity given to the seven children of Hugh Galbraith, of $2,520 annually, an annuity to the same children of $2,100 yearly for life, and then to their heirs.

The testator also bequeathed by the codicil an annuity to the Kona Orphanage of Kona of $100 yearly, "under the same conditions as the other annuitants mentioned, save and accepted, Hugh Galbraith, Josie Fink, Emma Douglass, and Matilda Bailey."

Upon the above facts, several questions arose and were submitted to the court below, among them one which relates to the validity of the trust and another to the disposition of the surplus income remaining after the payments to the annuitants mentioned in the will. chanrobles.com-red

Page 211 U. S. 327


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