KAPIOLANI MATERNITY AND G. HOSPITAL v. Wodehouse

• Decision Date: 10 April 1934
• Docket Number: No. 7026.,7026.
• Citation: 70 F.2d 793
• Parties: KAPIOLANI MATERNITY AND GYNECOLOGICAL HOSPITAL v. WODEHOUSE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

70 F.2d 793 (1934)

KAPIOLANI MATERNITY AND GYNECOLOGICAL HOSPITAL v. WODEHOUSE et al.

No. 7026.

Circuit Court of Appeals, Ninth Circuit.

April 10, 1934.

E. C. Peters, of Honolulu, T. H., and Orrin K. McMurray, of Berkeley, Cal., for appellant.

A. G. M. Robertson, A. L. Castle, A. Withington, and J. G. Anthony, all of Honolulu, T. H., for appellees.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal taken from the decision of the Supreme Court of the territory of Hawaii rendered upon an agreed case submitted to that court in pursuance of sections 2371 to 2374, inclusive, of Revised Laws of Hawaii 1925. The parties to the agreement are the Kapiolani Maternity and Gynecological Hospital and Ernest H. Wodehouse and James L. P. Robinson, executors of the will of Mary E. Foster, deceased. The facts agreed upon by the parties may be briefly summarized as follows:

The Kapiolani Maternity and Gynecological Hospital, which will be hereinafter referred to as the "Maternity Hospital" or as "the appellant," is a corporation established under the laws of Hawaii for the purpose of benevolence and charity and for the special object of providing a maternity home where Hawaiian women could receive proper care and treatment during the period of childbirth. This corporation has no capital stock and no provisions for dividends or profits, its funds being mainly derived from public and private charity, and all property received by it from any source it holds and will hold in trust to be devoted to the object of sustaining a maternity hospital, improving its accommodations, and diminishing its expenses. Mary E. Foster, the testatrix, died December 19, 1930, leaving a last will and testament dated December 22, 1926, and a codicil thereto dated January 17, 1930. The will contained a bequest of the sum of $50,000 to the appellant under its former name, Kapiolani Maternity Home, as follows: "Ninth. I give, devise and bequeath the sum of Fifty Thousand Dollars ($50,000.00), unto the Maternity Hospital known as Kapiolani Maternity Home, of Honolulu, Territory of Hawaii. It is made a condition of this bequest that said Maternity Hospital shall establish within one year after payment of this bequest and maintain at least five (5) beds at said Maternity Hospital. These beds shall be maintained either in wards or in private rooms but shall be for the use of women in need of the medical and other care administered by the said Maternity Hospital and who are unable to pay for such care. It is made an express condition of this bequest that no woman in need of care who is unable to pay for such care shall be refused the use of one of such beds unless all of such beds are already occupied by patients for whose care the said Maternity Hospital is making no charge; and preference shall be shown women with Native Hawaiian blood in their veins. If during my lifetime, and after the execution of this will, I shall give to said Maternity Hospital said sum of Fifty Thousand Dollars ($50,000.00), or any part thereof, such sum so given shall be considered an advancement and the amount thereby bequeathed shall be reduced by the amount of such advancement."

After the execution of the will and before the execution of the codicil, to wit, on February 15, 1929, testatrix gave the hospital the sum of $25,000. The circumstances surrounding this gift are stated in the agreed facts as follows: "The trustees created a building fund, the funds of which were to be devoted exclusively to the erection and completion of the proposed new maternity hospital on its new site at the corner of Punahou and Bingham Streets, opened an account in a local bank to the credit of said building fund and deposited therein all moneys possessed by it and available therefor and such additional moneys as it was able to borrow upon the security of its real property; that on, towit, August 20, 1929, it entered into a building contract with a local contractor for the erection and completion of a maternity hospital building on its new site at the corner of Punahou and Bingham Streets for the agreed price of one hundred fifty-three thousand eight hundred forty-six dollars ninety cents ($153,846.90), which amount was approximately twenty-five thousand dollars ($25,000) in excess of the amount then to the credit of said building fund, and thereafter through its trustees approached and solicited divers persons, including the testatrix, Mary E. Foster, to contribute to said building fund, explaining to them and her that the Kapiolani Maternity Home was trying to raise sufficient funds to meet the cost of the erection and completion of a new maternity hospital building on its new site on the corner of Punahou and Bingham Streets and stating what had been done by the trustees up to that time as hereinbefore alleged; that on, towit, February 15, 1929, the testatrix, Mary E. Foster, in response to the solicitations made of her, with full knowledge of all the facts and well knowing that any moneys that she might contribute to such building fund were for the exclusive purpose of defraying the cost and expenses of the erection and completion of the new maternity hospital building at the new site and would be used exclusively for that purpose and not for the establishment and/or maintenance of beds or for other furniture, fixtures or equipment to be used in said maternity hospital, made a gift to the Kapiolani Maternity and Gynecological Hospital of the sum of twenty-five thousand dollars ($25,000.00) accompanying her gift with a letter over the signature of E. H. Wodehouse, Esq., as agent for the said Mary E. Foster, addressed to Mary H. Hons, Treasurer of the Kapiolani Maternity Home, containing the following statement: `I have been instructed by Mrs. Mary E. Foster to hand you the inclosed check No. 363 on The Bank of Bishop & Co., Ltd., payable to the Treasurer of the Kapiolani Maternity Home, in the sum of $25,000.00, this amount being her contribution to the fund being raised by the Home for the completion of the new maternity hospital'; that the said sum of twenty-five thousand dollars ($25,000.00) so contributed by the said testatrix, Mary E. Foster, was deposited in said bank by the trustees of the Kapiolani Maternity Home and Gynecological Hospital to the credit of the building fund so created as aforesaid and with other funds therein were checked out and used exclusively by it in defraying the expenses and the cost of erection and completion of said new maternity hospital building and for no other purpose; that the new maternity hospital was completed on, towit, March 26, 1929, and the furniture, fixtures and equipment, including beds, of the former hospital at No. 1538 Beretania Street then removed thereto, since which time the maternity hospital so previously maintained and conducted at No. 1538 Beretania Street has been abandoned and the Kapiolani Maternity and Gynecological Hospital ever since last named date has conducted and maintained and is now conducting and maintaining the new maternity hospital at its new site on the corner of Punahou and Bingham Streets for the purpose of benevolence and charity and for the special object of providing a maternity home where the Hawaiian women can obtain proper care and treatment during the period of childbirth; that the Kapiolani Maternity and Gynecological Hospital, in token of its appreciation of the gift of the testatrix Mary E. Foster, during the period of construction of the new maternity hospital building, named the west wing of the upper floor the `Mary E. Foster Wing' and fittingly and permanently inscribed upon the arch of the corridor leading to said wing the words `Mary E. Foster.'"

The original will of the testatrix contained a residuary clause devising and bequeathing all of the residue of her property, after the payment of some twenty-six legacies, in equal shares to the Maternity Hospital and to the Leahi Home for "the establishment of a permanent fund for the charitable use of the said Maternity Hospital and of the said Leahi Home in their benevolent work, as a perpetual memorial to my father," etc. (Italics ours.) The codicil to the will executed after the gift of the $25,000 made no reference to the gift nor to the bequest of the $50,000 in the ninth clause of the will. However, the codicil made many changes in the will and specifically revoked the residuary clause and in lieu thereof gave the residue to the executors to hold the same in trust for her sisters as long as any one of them lived and thereafter the remainder to their children, etc. The agreement of facts states:

"That neither the sum of fifty thousand dollars ($50,000.00) nor any lesser sum is adequate to establish within one year after the payment of the sum of fifty thousand dollars ($50,000.00) or any lesser sum and perpetually maintain at least five beds at the Kapiolani Maternity and Gynecological Hospital conducted by the Kapiolani Maternity and Gynecological Hospital at the corner of Punahou and Bingham Streets, Honolulu, Hawaii, either in wards or in private rooms for the use of women in need of medical and other care administered by the Kapiolani Maternity and Gynecological Hospital and who are unable to pay for such care subject to the condition that no one woman in need of care, who is unable to pay for such care, shall be refused the use of one of such beds unless all of such beds are already occupied by patients for whose care the said Kapiolani Maternity and Gynecological Hospital is making no charge.

"That notwithstanding the inadequacy of the sum of fifty thousand dollars ($50,000.00) or any less sum to establish and perpetually maintain five beds pursuant to and in conformity with the provisions of article nine of the will of the testatrix of December 22, 1926, the Kapiolani Maternity and Gynecological Hospital is willing to accept said legacy in either the full amount, or should the court hold that...