Hawaiian Trust Co. v. Wilder

• Decision Date: 02 April 1963
• Docket Number: No. 4177,4177
• Citation: 382 P.2d 61,46 Haw. 436
• Parties: HAWAIIAN TRUST COMPANY, Limited, Executor of the Will of Harriet Emily Wight, Deceased, and Hawaiian Trust Company, Limited, Trustee Under the Will of Harriet Emily Wight, Deceased, v. Ellwood C. WILDER, Jr., et al.
• Court: Hawaii Supreme Court

Page 61

382 P.2d 61

46 Haw. 436

HAWAIIAN TRUST COMPANY, Limited, Executor of the Will of

Harriet Emily Wight, Deceased, and Hawaiian Trust

Company, Limited, Trustee Under the Will

of Harriet Emily Wight, Deceased, v. Ellwood C. WILDER, Jr., et al.

No. 4177.

Supreme Court of Hawai'i.

April 2, 1963.

SYLLABUS BY THE COURT

This is an appeal from a decree rendered in a proceeding seeking instructions as to the order of abatement of gifts for payment of debts, administration expenses and taxes. The will contained general cash bequests, specific bequests, and devises of specifically described parcels. It set up a trust of 'all of the rest, residue and remainder of my real property,' followed by an article disposing of 'the rest, residue and remainder of may property, wherever situated and of whatever nature.' The first article in the will directed payment of debts and expenses 'and also to pay out of my residuary estate all estate, inheritance, succession and transfer taxes.' Testatrix owned only one large tract of real property, containing the described parcels and 63 acres besides. The court below held that after exhaustion of the residuary personalty the gift in trust of the real property, this 63 acres, was to be abated next. Judgment affirmed.

Clinton R. Ashford, Honolulu (Stephenson, Ashford & Wriston, Honolulu, on the briefs), for Ellwood C. Wilder, Jr., defendant-appellant.

George M. Koga, Wong, Lo & Koga, Honolulu, for Harry Uemura and Yuriko Uyemura, defendants-appellees.

Eichi Oki, Honolulu (Charles M. Hite, Honolulu, with him on the briefs), for Daughters of Hawaii, defendant-appellee.

James S. Campbell, Honolulu (Smith, Wild, Beebe & Cades, Honolulu, with him on the brief), for Hawaiian Humane Society, defendant-appellee.

Wilder Wight filed briefs for himself but was deceased at time of argument.

Richard E. Stifel, Honolulu (Anderson, Wrenn & Jenks, Honolulu, on the brief) for plaintiffs-appellees and Edna G. Chamberlin, defendant-appellee.

John F. Alexander, Honolulu, guardian ad litem for Alice I. Uyemura, Ann Uemura, Edna Uemura, Ella Uemura, Kathleen Uyemura, Lita Thompson, Ellen Lita Wright, Elizabeth Allan Wight, Laura Mildred Wight and Melinda Lani Wight, defendants-appellees. (Filed no brief and did not appear to argue.)

Allen M. Stack, Pratt & Tavares, Honolulu, for Elizabeth Low Lucas, defendant-appellee. (Filed no brief and did not appear to argue.)

Edward N. Sylva, Honolulu, for Millie F. Rawlins, executrix of the will of Wilder Wight, deceased, defendant-appellant.

Before TSUKIYAMA, C. J., WIRTZ, LEWIS and MIZUHA, JJ., and DYER, Circuit Judge, in place of CASSIDY, J., disqualified.

Opinion by MIZUHA, Justice, in which TSUKIYAMA, Chief Justice, joins.

Harriet Emily Wight died in 1958 leaving a will disposing of her entire estate (see appended note). The property bequeathed and devised in the disputed residuary clauses of her will consists of: personal property, $233,358.07, ¹ and real property, $443,000.00, ² but the debts, administration expenses and taxes to be paid by the estate are estimated by the executor to amount to $251,700.00. General legacies amount to $31,500.00. The approximate deficiency in the residuary personalty to pay debts, administration expenses and taxes amounts to $18,341.00, plus $31,500.00 to pay general legacies, or a total of $49,841.00.

The executor brought the proceeding in the lower court for instructions as to which of the testamentary gifts were to be charged with the payment of the debts, administration expenses and taxes in the event of a deficiency, and as to the order in which the testamentary gifts should be abated.

The lower court found that the debts, administration expenses and taxes should be paid out first from the residuary personal property in Article 6 and then from the residuary real property in Article 7, and that the gift of the residuary real property in Article 7 should be charged for the payment of general legacies.

Two of the remaindermen, Ellwood C. Wilder, Jr., and Wilder Wight have appealed contending that the trial court erred in defining the gift of real property in trust in Article 7 as a residuary gift, and in failing to rule that it was a specific devise, or in any event, in failing to find that the real property should be resorted to in abatement only after the exhaustion of all gifts of personal property.

The questions presented are as follows:

1. Is the gift of real property in trust made by Article 7 of decedent's will a residuary devise as ruled by the lower court or a specific devise?

2. If the gift of real property in trust made by Article 7 is a residuary devise, is it charged by Article 1 of decedent's will for the payment of all debts, funeral expenses, administration expenses and all estate and inheritance taxes?

3. If the gift of real property in trust made by Article 7 is a residuary devise, are general legacies payable out of the proceeds of residuary realty after the exhaustion of residuary personal property?

By Article 7, ³ testatrix devised, along with $25,000.00 in cash and/or securities 'all of the rest, residue and remainder of my real property, including all lands and improvements thereon, and all rights, privileges and easements appertaining thereto, to HAWAIIAN TRUST COMPANY, LIMITED, * * * in trust * * *.' ⁴

Article 6 of decedent's will reads as follows:

'I give, devise and bequeath the rest, residue and remainder of my property, wherever situated and of whatever nature, absolutely, as follows: * * *'

No question is raised as to Article 6 and its status as a residuary clause is undisputed. However, the appellants contend that Article 7 is not a residuary devise of real property. They argue that it is a specific gift of the balance of the testatrix's Nuuanu real property, urging in main the following reasons: (1) that the testatrix had owned only one piece of land, the Nuuanu property, for the period of approximately twenty-six years preceding her death; (2) that just one year prior to making her will, the testatrix had registered the title to her Nuuanu property in the Land Court of Hawaii; (3) that numerous provisions of Article 7 could not possibly have had application to any real property other than the Nuuanu property; and (4) that the testatrix had constantly referred in her will to the land devised by Article 7 as 'my real property.'

The lower court held the gift in Article 7 to be a residuary devise of real property stating as follows:

'* * * In the first place, the decedent described the property in general terms. In the second place, after the decedent had executed her will which contained the gift of the residue of her real property, she executed two codicils in which she carved two specific gifts of real property out of the residue of her real property. Furthermore, the decedent did not intend that the real property passing under Article SEVENTH go to the particular individuals since the directed that the trustee sell the remaining property and distribute the proceeds among certain named persons. Finally, these named persons who were to receive the proceeds from the remainder of the real property were the same persons who were to receive the ultimate remainder of her other property under Article SIXTH. All of these considerations lead the Court to conclude that the gift of the residue of decedent's real property under Article SEVENTH, was not specific, but was a general, residuary gift.'

A will may sometimes contain several residuary clauses. 4 Page, Wills, § 33.60; Moffett v. Elmendorf, 152 N.Y. 475, 46 N.E. 845; Equitable Trust Co. v. Delaware Trust Co., 30 Del.Ch. 348, 61 A.2d 529; Salem Nat'l Bank & Trust Co. v. Harkins, 140 N.J.Eq. 82, 53 A.2d 373. See also Downs v. Casperson, 20 Del.Ch. 119, 171 A. 753.

In Moffett v. Elmendorf, supra, the court found three residuary clauses, one for personalty, one for realty not otherwise disposed of, subject to certain conditions, and one for realty in general.

In Equitable Trust Co. v. Delaware Trust Co., supra 61 A.2d at 533, the testatrix specifically provided:

"Item VII. * * * I give and bequeath * * * and all other personal property at 'Dunleith' or elsewhere, * * *.

* * *

* * *

"Item IX. All other real estate of which I die seized and all other real estate over which I have any power of appointment, I give and devise * * *.

* * *

* * *

"Item XII. All the rest, residue and remainder of my estate, whether real, personal or mixed and which I may now or hereafter acquire, and all other property of any character with respect to which I may have a power of appointment at the time of my death, I give, devise and bequeath * * *."

The Delaware court rejected the contention that Items VII and IX merely provided for specific gifts and held them to be residuary clauses. It further stated:

'* * * The gift of the enumerated kinds of property in that Item [VII] may be specific, but the additional gift of 'all other personal property at 'Dunleith' or elsewhere' is a residuary gift. It covers all tangible personal property belonging to the testatrix, as well as that over which she had a testamentary power of appointment, no matter where located. * * *

* * *

* * *

'The devise of 'all other real estate' * * * in Item IX is likewise a particular residuary devise and includes all real property not otherwise disposed of, as well as all interests in real property ineffectively given or appointed by other items of the will and the codicil. * * *

* * *

* * *

'The general residuary clause (Item XII) is, however, applicable to any other personal property, not of a tangible nature, belonging to the testatrix and that over which she had a testamentary power of appointment, including the ineffective gift of $25,000, that may be left after the payment of debts, expenses, taxes and legacies.' Equitable Trust Co. v. Delaware Trust Co., supra at 541.

That which is to be sought in the instant case is the intention of the...