Kanoa's Trust Estate, In re

CourtSupreme Court of Hawai'i
Citation393 P.2d 753,47 Haw. 610
Docket NumberNos. 4363,4364,s. 4363
PartiesIn the Matter of the TRUST ESTATE of Kaleipua KANOA, Deceased.
Decision Date26 June 1964

Syllabus by the Court

1. While the popular meaning of the Hawaiian word 'keiki' is 'child,' its meaning in any particular instance depends on the context in which it is used and it can mean 'descendant of any generation.'

2. Where a testamentary trust directs the payment of income to five named beneficiaries and provides 'should any of them die without 'keiki', then the portion of the income of the one who died without 'keiki' shall be equally divided among the survivors, but if any of them die leaving any 'keiki ponoi' surviving, then the portion of one who died shall be divided among the 'keiki' who are living,' and further provides that after the death of the five named beneficiaries, 'I direct my Trustee to equally divide all of my estate among the heirs of their body,' with the proviso that should any of them, that is, the five named income beneficiaries, 'die without 'keiki', then the heirs of the body of those above described shall receive the estate, which shall be equally divided among them,' only the lineal descendants of the five named income takers in existence at the date of the termination of the trust participate in the distribution of the corpus and they take per stirpes.

Paul F. Cronin, Honolulu (Pratt, Moore, Bortz & Vitousek, Honolulu, of counsel), for Charles Lewis Kreuter, et al., respondents-appellants in No. 4363.

William H. Dodd, Jr., and Herbert Y. C. Choy, Honolulu (Fong, Miho, Choy & Robinson, Honolulu, of counsel), for Magoon Estate, Ltd., respondent-appellant in No. 4364.

F. D. Padgett, Honolulu (Robertson, Castle & Anthony, Honolulu), for Bishop Trust Co., Ltd., petitioner-appellee, neither filed a brief nor argued.

Robert G. Dodge, Honolulu (Heen, Kai & Dodge, Honolulu, of counsel), for John D. Kaupiko and Simeon K. Aylett, respondents-appellees.

Eichi Oki, Honolulu (Vincent H. Yano, Honolulu, of counsel), for Manuel Victorino, respondent-appellee.

Harry T. Tanaka, Honolulu (Yamaguchi & Tanaka, Honolulu, of counsel), for Walter Lloyd Kreuter, et al., respondents-appellees.

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

PER CURIAM.

This proceeding was initiated by a bill for instructions filed by Bishop Trust Co., Ltd., successor trustee of the testamentary trust created by Kaleipua Kanoa, who died on September 21, 1897.

By her will, which was written in the Hawaiian language, the testatrix set up a trust of her residuary estate, naming five individuals, Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w), and Lukela (k), as initial income takers, with provision made for substitution upon the death of any of them. The trust was to terminate on the death of the survivor of the five named beneficiaries, which occurred with the death of Lukela on March 29, 1962.

An acceptable translation of the distribution clause of the trust, without interpretation of the word 'keiki,' is as follows:

'* * * And after the death of Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w), and Lukela (k), I direct my Trustee to equally divide all of my estate among the heirs of their body. Provided, however, should any of them, that is, Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w) and Lukela (k), die without 'keiki', then the heirs of the body of those above described shall receive the estate, which shall be equally divided among them.'

By its bill the trustee requested to be instructed to whom and in what shares the trust corpus should be distributed.

The trial court construed the trust to provide for a stirpital distribution among the surviving descendants of the named income beneficiaries. Two separate appeals have been taken from the holding.

One of the appellants, Magoon Estate, Ltd., contends that under a proper construction of the will, a child of an original life beneficiary acquired an indefeasibly vested remainder interest in the corpus upon his birth or at least upon the death of his parent. By mesne conveyances, Magoon Estate acquired all the right, title and interest in the trust estate of Esther K. Victorino who was the only child of Kanehiwa. She died in 1955. Her father, Kanehiwa, died in 1937. Magoon Estate's position is that it takes a share of the corpus of the estate to the exclusion of a surviving son of Esther Victorino.

The other appellants, appealing jointly, are the seven surviving children of Hoomalu and the representatives of the estate of one of Hoomalu's children who died after the death of Lukela. They contend that the will provides for either a per capita distribution among the descendants of the original life beneficiaries or for a distribution limited to the blood children of such beneficiaries. Another child of Hoomalu died in 1958 leaving three children. They contended in the lower court for a per capita distribution. As appellees in this court they argue, with the three remaining individual appellees (a son of Lukela, a son of Kaleipualiilii and a grandson of Kanehiwa) to sustain the judgment entered below. (Eva Kapualanilehua died without issue a few years after the inception of the trust.)

An incidental point raised below was whether an illegitimate child of a daughter of one of the named life beneficiaries could claim through his mother. The trial court's ruling on the point was that he could not. However, that issue is not before us as the respondent adversely affected by the particular ruling has not appealed.

With the deletion of the portions pertaining to the ruling on the status of the illegitimate child, the trial court's decision is set out hereunder.

'This action was brought by Bishop Trust Company, Limited, Trustee under the Will and of the Estate of Kaleipua Kanoa, Deceased, requesting instructions as to the proper distribution of the corpus of the trust estate.

'The facts are not in dispute. Kaleipua Kanoa executed her will, written in the Hawaiian language, on September 17, 1897 and died four days after. She was survived by all of the five named initial income takers, namely, Kanehiwa, Hoomalu, Kaleipualiilii, Eva Kapualanilehua, and Lukela. At the time of the death of the testatrix, Kanehiwa was an adult and the other four were minor children. Lukela was 5 years of age, Kaleipualiilii 12, and Hoomalu 15. Eva Kapualanilehua's date of birth is not known. From the terms of the will, Eva Kapualanilehua was evidently a minor child like the other three. All five of the named initial income takers are now deceased, Lukela, the last survivor, having died on March 29, 1962.

'Kanehiwa died on August 28, 1937, survived by his sole blood child Esther Kaleipua Kanehiwa Victorino (hereinafter referred to as Esther). Esther conveyed her interest in the Kanoa trust estate to Marmion M. Magoon by an instrument dated January 26, 1928, which interest was subsequently assigned by Marmion M. Magoon to the Trustees of the Emmeline M. Magoon Trust and in turn assigned to Magoon Estate, Limited (hereinafter referred to as Magoon Estate). * * *

'Hoomalu (whose married name was Mrs. Charles Kreuter), died on April 16, 1945 and was survived by nine children. One of the children, Walter Kreuter, died on October 8, 1958 and was survived by three children, namely, Walter Lloyd Kreuter, Frances Kreuter Cotton, and Marshall Winston Kreuter, all of whom are still living. Norman Francis Kreuter, another son of Hoomalu, died on March 29, 1962, about three hours after Lukela's death.

'Kaleipualiilii (also known as Kaleipualiilii Aylett), sister of Lukela, died on August 3, 1954 and was survived by one child, Simeon Aylett, who is still living.

'Eva Kapualanilehua, whose date of death is unknown, died without issue.

'Lukela (also known as Lukela Kaupiko) died on March 29, 1962 and was survived by one child, John D. Kaupiko, Jr., who is still living.

'In her will, the testatrix created a testamentary trust of her residuary estate. Although the present proceeding is concerned with the distribution of the corpus, it will be helpful in construing the will to consider both the income and the corpus provisions. The portion of the will of Kaleipua Kanoa containing the income and the corpus provisions, as translated (except for the disputed word 'keiki', which has been translated and construed as 'issue' in the prior proceeding), is as follows:

"And after the death of Kaupiko (k) and Kaluaihalawa (k), and the attainment of majority by Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w), and Lukela (k), I direct my Trustee to equally divide all of the income from my estate among Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w) and Lukela (k), and should any of them die without 'keiki', then the portion of the income of the one who died without 'keiki' shall be equally divided among the survivors, but if any of them die leaving any 'keiki ponoi' surviving, then the portion of the one who died shall be divided among the 'keiki' who are living. And after the death of Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w), and Lukela (k), I direct my Trustee to equally divide all of my estate among the heirs of their body. Provided, however, should any of them, that is, Kanehiwa (k), Hoomalu (w), Kaleipualiilii (w), Eva Kapualanilehua (w) and Lukela (k), die without 'keiki', then the heirs of the body of those above described shall receive the estate, which shall be equally divided among them.'

'In the prior proceeding in this case involving the distribution of certain trust income, the Court held that the testamentary trust under the will of Kaleipua Kanoa created successive life interests in the trust income in favor of any and all lineal descendants of the five named initial income takers on a per stirpes basis with rights of reppresentation in...

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