In re Estate of Campbell

Decision Date23 May 1936
Docket NumberNo. 2274.,2274.
PartiesIN THE MATTER OF THE ESTATE OF JAMES CAMPBELL, DECEASED.
CourtHawaii Supreme Court

OPINION TEXT STARTS HERE

RESERVED QUESTIONS FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. N. D. GODBOLD, JUDGE.

Syllabus by the Court

In construing a will the cardinal rule to which all other rules must bend is that the intention of the testator controls and must be given effect unless it be contrary to some rule of law or against public policy.

The rule of intention applies to the appointment of trustees similarly as to other parts of a will.

Under the laws of Hawaii a circuit judge sitting at chambers in probate is an “Hawaiian court having probate jurisdiction” within the meaning of that term as employed in a will directing that vacancies in the office of trustee be filled by nomination of a successor trustee to and the confirmation of such nominee by the “Hawaiian court having probate jurisdiction.”

A power of nomination of successor trustees must be strictly construed.

A. G. M. Robertson ( Robertson & Castle on the briefs) for surviving trustees.

C. S. Davis (also on the brief) for respondents and cross petitioners Muriel C. Shingle, et al.

J. P. Russell ( F. E. Thompson on the brief) for respondents Abigail W. C., Abigail H. K. K. and Lydia K. L. Kawananakoa.

I. M. Stainback (also on the brief) for the guardian ad litem.

B. S. Ulrich for Alice K. Campbell, et al.

L. Jenks, of the firm of Anderson, Marx, Wrenn & Jenks, for Beatrice Wrigley.

BANKS AND PETERS, JJ., AND CIRCUIT JUDGE METZGER IN PLACE OF COKE, C. J., DISQUALIFIED.

OPINION OF THE COURT BY PETERS, J.

This is a reservation permitted under section 3450, R. L. 1935. The questions of law reserved arose in a proceeding before the circuit judge in chambers, brought by the surviving trustees under the will and of the estate of James Campbell, deceased, for confirmation of their nominee to the office of cotrustee and for the entry of an appropriate vesting order. The report of the cause contains the last will and testament of the testator, the petition of the surviving trustees for appointment of new trustee and the respective answers and cross bills of certain appearing respondent beneficiaries.

Under the pleadings the following facts are admitted: The petitioners are the surviving trustees under the will and of the estate of James Campbell, late of Honolulu, deceased; Robert Witt Shingle, a former trustee, died at Honolulu on the twenty-third day of October, 1935; the last will and testament of the said James Campbell was duly proved and admitted to probate; the eighteenth paragraph of said will provides as follows: “Eighteenth: I hereby nominate and appoint my said wife, Abbie Campbell, as Executrix, and Joseph O. Carter, the elder, and Cecil Brown, both of said Honolulu, as Executors of this my Last Will and Testament; and I further nominate and appoint my said wife, and said Joseph O. Carter, the elder, and Cecil Brown, to be and act as Trustees of my said Estate, as hereinbefore provided. And I will and direct that if, for any reason, one or more of said persons so nominated shall be unable or shall decline to assume or to continue the relation of such Executrix, Executor or Trustee, his or her place as such officer shall be filled as follows, namely:--If only one of said nominees shall be willing to so act, or if, for any reason, their number, as such officers, shall be reduced to one, the one so willing to act or acting, shall nominate to the Hawaiian Court having probate jurisdiction, some other suitable person to act as such Executrix, Executor or Trustee, as the case may be. If such nomination shall be confirmed by the Court, and such nominee shall duly qualify, then the remaining vacancy shall be filled by a joint nomination of the two persons so qualified, and confirmation by the Court. And where there shall exist but one such vacancy, both of the persons then willing to act or acting, shall join in any nomination to fill the same:-- and, in like manner any and all successive vacancies shall be filled, by such nominations and confirmations;” the said Abbie Campbell, Joseph O. Carter and Cecil Brown, the trustees named in said will have long since died; the acting trustees under said will until October 23, 1935, were the petitioners and the said Robert Witt Shingle; the petitioners have joined in the nomination and in and by their petition thereby nominate George Miles Collins, of Honolulu aforesaid, as a trustee under said will and of said estate to fill the vacancy caused by the death of said Robert Witt Shingle.

The will of the testator was executed in San Francisco, State of California, and is dated July 8, 1896.

The questions of law reserved are as follows: “1. Are the provisions of the last will and testament of James Campbell, deceased, providing for the suggestion or nomination and appointment of successor trustees, particularly paragraph eighteenth of said will, valid? 2. Are petitioners, Albert Newton Campbell and John Kirkwood Clarke, as trustees under said will, vested with the sole and exclusive right, power and privilege under said will of suggesting and nominating persons to fill vacancies in the board of three trustees provided for in said will?” They will be discussed seriatim.

1. In our opinion the testator, by providing that nominations to fill a vacancy in the office of trustee be confirmed by the Hawaiian court having probate jurisdiction, made an invalid attempt to confer upon a judicial tribunal jurisdiction which was not vested in it by the laws of Hawaii and that hence the provisions of said will and particularly paragraph eighteenth thereof, to the extent that they attempt to confer such jurisdiction, are null and void.

In construing a will the cardinal rule to which all other rules must bend is that the intention of the testator controls and must be given effect unless it be contrary to some rule of law or against public policy. (Harrison v. Judd, 3 Haw. 421, 426; Thurston v. Allen, 8 Haw. 392, 400; Ninia v. Wilder, 12 Haw. 104, 107, 108; Rooke v. Queen's Hospital, 12 Haw. 375, 379; Fitchie v. Brown, 18 Haw. 52, 70; Mercer v. Kirkpatrick, 22 Haw. 644, 647; Lucas v. Scott, 239 Fed. 450, 453; McCandless v. Castle, 25 Haw. 22, 30; Wodehouse v. Robinson, 27 Haw. 462, 466, 475; Estate of Deering, 29 Haw. 854, 857; Kinney v. Robinson, 30 Haw. 246, 253; O'Neil v. Dreier, 61 F. [2d] 598, 599.) And this applies to the appointment of trustees similarly as to other parts of a will. (Estate of Lutted, 23 Haw. 11, 15.) Such intention, however, is to be ascertained from the language of the will itself as far as the language employed permits and resort should not be had to rules of construction unless and until from the ambiguity of the language used the intention of the testator cannot be fairly and reasonably ascertained. The intent to be discovered is not whether the testator intended to make a valid provision for filling vacancies in the office of trustee but what provisions he in fact intended to make. When such intent is discovered it is for the court to determine the legal effect. “The duty of the court is not to make a new will * * * to carry out some supposed but undisclosed purpose, but to ascertain what the testator actually intended by the language employed by him, when properly interpreted, and then to determine whether such intended provisions are valid or otherwise.” Herzog v. Title Guarantee & Trust Co., 69 N. E. (N. Y.) 283, 284. The duty of the court is to interpret, not to construct; to construe the will, and not to make a new one.

No difficulty is encountered in the instant case in understanding the method the testator intended should be employed in filling vacancies occurring in the office of trustee. The language employed is clear and unambiguous and free from all possible doubt. He committed the nomination and confirmation of substitute or successor trustees to the surviving trustee or trustees and the Hawaiian court having probate jurisdiction in terms as plain and unequivocal as the English language admits. Hence in construing this delegation of power neither rules of construction nor the doctrine of cy pres are applicable. (Estate of Hartwell, 23 Haw. 213, 218, 219; Wodehouse v. Robinson, supra; Estate of Deering, 30 Haw. 217, 223; Hatcher v. Pruitt [Ky.], 22 S. W. [2d] 133, 135.)

As a major premise we may safely assume without fear of cavil that the testator intended that the trust be administered according to the laws of Hawaii, including the laws applicable to the judiciary of Hawaii. (Greenough v. Osgood, 235 Mass. 235, 238.) He provided that in filling vacancies in the office of trustee nominations should be made to and confirmation of such nominations should be made by an “Hawaiian” court. So that to whatever judicial tribunal it may be said nominations were required to be made or the power of confirmation of nominees was committed, in both instances the tribunal was a tribunal of Hawaii. He expressly provides in the eighteenth paragraph of his will that nominations be made to an “Hawaiian” court and that such nominations be confirmed by said court. And we must assume in the absence of anything to the contrary that he meant exactly what he said.

Moreover he expressly provided the means of identifying the Hawaiian court to which nominations should be made and by which such nominations should be confirmed. He provided that it should be the “Hawaiian court having probate jurisdiction.” Nothing could be clearer. What greater accuracy could be employed in identifying a court, by means other than identifying it by name, than to describe it by the law of its existence and the jurisdiction vested in it under such law? The laws of Hawaii provide the key to the identity of the court which the testator intended should exercise the power of confirmation. A circuit judge at chambers at the time of the execution of the will in question was, and since has been and...

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4 cases
  • Blair v. Ing, No. 22401.
    • United States
    • Hawaii Supreme Court
    • February 27, 2001
    ...from the ambiguity of the language used the intention of the testator cannot be fairly and reasonably ascertained. In re Campbell Estate, 33 Haw. 799, 801-02 (1936) (citations omitted). Moreover, imposition of a duty will not create the potential conflict of interest argued by Ing. As state......
  • Campbell's Estate, In re
    • United States
    • Hawaii Supreme Court
    • May 31, 1963
    ...successor trustee, and decided further that the power of nomination by the successor trustees fell with this invalid provision. Estate of Campbell, 33 Haw. 799. Following the decision on the reserved questions the circuit judge made his own appointment of a successor trustee, appointing Jam......
  • IN THE MATTER MEDEIROS TESTAMENTARY TRUST
    • United States
    • Hawaii Supreme Court
    • September 3, 2004
    ...the law in effect in 1942 when Joseph Medeiros executed the irrevocable life insurance trust and in 1946 when he died. In re Estate of Campbell, 33 Haw. 799 (1936) (court reviewed law in effect at time will was executed to determine testator's intent); W. Fratcher, Scott on Trusts § 164.1 (......
  • In re Estate of Campbell
    • United States
    • Hawaii Supreme Court
    • June 20, 1958
    ...Estate v. Campbell–Parker, 18 Haw. 342; Hawaiian Trust Co. v. Von Holt, 216 U. S. 367;Campbell v. Kawananakoa, 31 Haw. 500; Estate of Campbell, 33 Haw. 799;Campbell v. Kawananakoa, 34 Haw. 333; Estate of James Campbell, 36 Haw. 631; Estate of James Campbell, 40 Haw. 543; and Welsh v. Campbe......

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