Fitchie v. Brown
The parties to this proceeding agreed upon a case, without action, containing the facts upon which a controversy had arisen between them, and submitted the same to the supreme court of the territory of Hawaii, conformably to the laws of that territory.

The court heard the case and made a decree therein, from which those named above as plaintiffs in the submission have appealed to this court, but the defendants executors have not appealed.

From the agreed statement of facts contained in the submission it appears that one George Galbraith, who died at Honolulu on the 5th of November, 1904, while domiciled in the territory of Hawaii, left a will, which has been duly admitted to probate in Hawaii, disposing of an estate of about $121,000 in personal property and $128,000 in real estate in Hawaii, and a small amount of real estate in Ireland.

The will gave some pecuniary legacies to a number of people, relatives and friends, and then provided that—

'The balance, residue, or remainder of my estate is to be placed in trust for as long a period as is legally possible, the termination or ending of said trust to take place when the law requires it under the statute.

'I hereby nominate and appoint the Hawaiian Trust Company, Limited, of Honolulu, territory of Hawaii, as trustee of the aforesaid balance, residue, or remainder of my estate, and they are to devote sufficient of the annual income derived from the same toward paying the following annuities, which are to be free and clear of all taxes, unto the following persons mentioned, namely' [here follow the names of the annuitants and the amounts which they are to receive yearly].

'All of the foregoing for life, and then to their heirs, save and excepted the last three persons; namely, Josie Fink, Emma Douglass, and Matilda Bailey, who are to receive only their annuities, and, at their death, all their interests to cease.

'On the final ending and distribution of the trust, the trust fund to be divided equally amongst those persons entitled at that time to the aforementioned annuities.'

On the same day the testator made a codicil, in which he made some changes of the annuities, substituting for the annuity given to the seven children of Hugh Galbraith, of $2,520 annually, an annuity to the same children of $2,100 yearly for life, and then to their heirs.

The testator also bequeathed by the codicil an annuity to the Kona Orphanage of Kona of $100 yearly, 'under the same conditions as the other annuitants mentioned, save and accepted, Hugh Galbraith, Josie Fink, Emma Douglass, and Matilda Bailey.'

Upon the above facts several questions arose and were submitted to the court below, among them one which relates to the validity of the trust and another to the disposition of the surplus income remaining after the payments to the annuitants mentioned in the will.

Messrs. Aldis B. Browne, William L. Stanley, Henry Holmes, and Alexander Britton for appellants.

The supreme court of Hawaii ordered a decree to be entered, which declared that the will of George Galbraith established a valid trust, and that the Hawaiian Trust Company, Limited, a corporation, the trustee named in the will, was legally authorized to administer the trust; that-under the trust it was the duty of the trustee to pay out of the income of the trust property the annuities payable by the provisions of the will to the four persons named therein for their respective lives, and for the payment of the other annuities payable by the will to the other annuitants therein named for and during their respective lives, and thereafter to pay the same to their heirs respectively until the end of twenty-one years after the death of the last survivor of all the said annuitants, and during the same period of time to pay to the Kona Orphanage the annuity directed in the will, and, at the end of said twenty-one years, to divide the trust fund and its accumulated and unapplied income as required by the direction in that behalf contained in the will.

Messrs. Aldis B. Browne, William L. Stanley, Henry Holmes, and Alexander Britton for appellants.

[Argument of counsel from pages 324-326 intentionally omitted.]

Messrs. John C. Gray and Roland Gray for appellee the Hawaiian Trust Co.

[Argument of counsel from pages 326-327 intentionally omitted.]

Messrs. Clarence H. Olson, William O. Smith, and A. Lewis, Jr., for Galbraith's executors.

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: 

Notes
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