Walker v. Ray J. O'Brien & Hawaiian Trust Co.

• Decision Date: 08 April 1939
• Docket Number: No. 2316.,2316.
• Citation: 35 Haw. 13
• Parties: MATILDA K. WALKER, ET AL., v. RAY J. O'BRIEN AND HAWAIIAN TRUST COMPANY, LIMITED, ET AL.
• Court: Hawaii Supreme Court

35 Haw. 13

MATILDA K. WALKER, ET AL.,

v.RAY J. O'BRIEN AND HAWAIIAN TRUST COMPANY, LIMITED, ET AL.

No. 2316.

Supreme Court of the Territory of Hawai‘i.

Argued February 20, 1939.

Decided April 8, 1939.

APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. D. E. METZGER, JUDGE.

Syllabus by the Court

As a general rule the grant of an annuity to a person without words of limitation is a grant of the annuity during the life of such person but a personal annuity given for a term of years or for the life of another does not terminate at the death of the annuitant but passes to his personal representatives.

Where, under a trust deed, the settlor conveyed to each of his four children who survived him one-fourth of the net income of the trust estate for the life of the trust, each child who survived the settlor did not take as a joint tenant of the other children with the right of survivorship but as a tenant in common with them.

T. Waddoups ( W. B. Lymer and M. K. Ashford on the briefs) for petitioners.

I. M. Stainback ( Stainback & Massee on the brief) for respondents.

COKE, C. J., CIRCUIT JUDGE LE BARON IN PLACE OF PETERS, J., DISQUALIFIED, AND CIRCUIT JUDGE BROOKS IN PLACE OF KEMP, J., DISQUALIFIED.

OPINION OF THE COURT BY COKE, C. J.

John A. Cummins, a distinguished citizen of Hawaii and a contemporary of King Kalakaua and the late Queen Liliuokalani, died in Honolulu in the month of January, 1913, leaving an estate of large value composed principally of land situated in and about the city of Honolulu. In October, 1896, he and his wife, Kahalewai Cummins, executed a joint trust deed (Mr. Cummins being designated therein as the party of the first part and Mrs. Cummins as the party of the second part) by the medium of which Mr. Cummins conveyed his property in trust to Joseph O. Carter, trustee. After providing for certain small annuities which are not involved in this proceeding the trust deed directed that $150 a month be paid out of the income of the estate to Kahalewai Cummins during her lifetime and the balance be paid to John A. Cummins and after the death of his wife the whole of the income should be paid to him during his life. Mrs. Cummins died first and upon the death of Mr. Cummins the net income was to be paid in equal shares to the children of John A. Cummins and his wife Kahalewai and to the child or children of any of them who might die before the party of the first part per stirpes.

Mr. Cummins and his wife Kahalewai left four children, namely, Matilda Walker, Thomas P. Cummins, Jane P. Merseberg and May K. Clark. Mrs. Clark in her early womanhood married Charles Creighton. Later on she was divorced and married Charles Kibling whose name she bore until his death, after which she married Joseph K. Clark. Mrs. Clark died in the State of California in December, 1935. Thomas B. Cummins and Jane P. Merseberg both died prior to Mrs. Clark's death. When the present cause was instituted in the court below Matilda Walker was the sole survivor of the four Cummins children. Mrs. Clark left surviving her husband, Joseph K. Clark, and an adopted child by the name of Marguerite Mamo Clark. She left a last will and testament by the terms of which she bequeathed all of her estate of whatsoever character and wheresoever located to her husband, Joseph K. Clark, and to her adopted child, Marguerite Mamo Clark, in equal shares and named her husband executor of her will. This will was duly admitted to probate in the State of California and the estate is still in the process of administration in the courts of that jurisdiction.

In 1936 Mrs. Walker and certain of the grandchildren of John A. Cummins and Kahalewai Cummins filed in the circuit court a bill in equity to construe the trust instrument above referred to. It is alleged in the bill that the right to share in the net income of the trust estate theretofore enjoyed by May K. Clark terminated at her death and such income from that time should be distributed to Mrs. Walker and the children of Thomas P. Cummins and Jane P. Merseberg.

With this construction of the purpose and effect of the trust deed Joseph K. Clark and Marguerite Mamo Clark took issue, claiming that they were entitled to the share of the income previously distributable to May K. Clark until the death of Mrs. Walker.

Two of the respondents, Ray J. O'Brien and Hawaiian Trust Company, Limited, the present trustees of the Cummins estate, appeared and filed an answer in the court below but have at all times maintained a neutral attitude as between parties to this controversy.

Circuit Judge Metzger, who presided at the trial of the cause in the lower court, held that, under the terms of the trust deed, upon the death of John A. Cummins, his daughter M. K. Clark having survived him took a vested and alienable right in and to one-fourth of the net income of the trust estate until the death of the last survivor of the original Cummins children, which upon the death of May K. Clark was distributable to her estate and upon the closing thereof should be paid under the provisions of Mrs. Clark's will in equal shares to her husband and adopted daughter. The trustees of the estate were instructed accordingly. From this decree the petitioners have appealed.

The trust instrument, after directing that the monthly allowance of $150 to Kahalewai should be treated as first charged upon the net income of the trust estate, provides: “The balance of said net income to be paid in quarterly instalments to the party of the first part [Mr. Cummins] for and during the term of his natural life, and from and after the death of the party of the second part [Kahalewai Cummins], the entire net income of said trust estate shall be paid to the party of the first part for life, and from and after his death, the said net income shall be paid, share and share alike, to the children aforesaid of the parties of the first and second part, who shall survive the party of the first part, and such child or children of any of them, the children of the parties of the first and second parts, who may die before the party of the first part, except that the children of any of them, the said children of the parties of the first and second parts, who may die before the party of the first part, shall take between them the share only which their parent would have taken if he or she had survived the party of the first part, the net income, after the...