
    COOKE TRUST COMPANY, LIMITED, EXECUTOR OF THE WILL OF WILLIAM STEWART L. MARKHAM, DECEASED, PETITIONER-APPELLEE, v. HAWAIIAN TRUST COMPANY, LIMITED, TRUSTEE FOR THE HEIRS OF ANNA DREIER MARKHAM UNDER THAT CERTAIN DEED OF TRUST DATED NOVEMBER 5, 1907, EXECUTED BY AUGUST DREIER AS GRANTOR TO CECIL BROWN AS TRUSTEE, BEATRICE K. MARKHAM CURRY, AND JENNIE S. GILLILAND, ET AL., RESPONDENTS-APPELLEES, AND CARL ALEXANDER MARKHAM, RESPONDENT-APPELLANT.
    No. 2671.
    Argued May 14. 1948.
    Decided May 17, 1948.
    Kemp, C. J., Peters and Le Baron, JJ.
   Per Curiam.

This is a motion by Carl Alexander Markham, the appellant, in the case of Cooke Trust Company, Limited, Executor, etc. v. Hawaiian Trust Company, Limited, Trustee, etc., et al., page 96 ante, for the taxation of costs incurred by him in connection with the appeal. The amount of the costs shown by the cost bill is $195.75.

The appeal involved the correctness of a decree entered in a bill for an accounting filed by William Stewart L. Markham against the Hawaiian Trust Company, Limited, trustee for the heirs of Anna Dreier Markham, in which he claimed that he and his sister were each entitled to one half of the income paid to his mother Nora K. Markham subsequent to an assignment of said income by his fathér William J. Markham to his mother “Nora K. Markham, trustee”; or, in the alternative, that he and his sister and his half brother, Carl Alexander Markham, were each entitled to a one third of said income after the death of their father. The Hawaiian Trust Company, Limited, trustee, had declined to distribute said income until advised by the court to whom it should be paid. Carl Alexander Markham was one of the respondents named in the bill.

Prior to a decision, the petitioner William Stewart L. Markham died, leaving a will naming Jennie S. Gilliland sole devisee and legatee of his estate, and Cooke Trust Company, Limited, as executor of his will. The executor was substituted as petitioner in lieu of the deceased petitioner and Jennie S. Gilliland was named a respondent in said proceeding.

Jennie S. Gilliland in her answer asserted that William Stewart L. Markham was, during his lifetime, entitled to one half of the income theretofore paid to his mother Nora K. Markham, trustee; that the executor of his will is entitled to receive as part of his estate the income accrued up to the time of his death, and that from and after his death she, as sole devisee and legatee, is entitled to one half of said income for the term of her natural life.

Carl Alexander Markham claimed that from the time of the death of his father William J. Markham, he became entitled for the term of his natural life to one third of the income formerly paid to his father.

Issue was joined between Carl Alexander Markham and Jennie S. Gilliland, the only two litigants who presented issues in the court below or briefs on this appeal.

The court below held with the contention of Mrs. Gilliland, and Carl Alexander Markham appealed.

The one controlling issue presented by the appeal and decided by this court involved the question of the character of the interest of William J. Markham in the income of said trust. Our decision sustained the claim of the appellant. It thus appears that Carl Alexander Markham was the prevailing party and Jennie S. Gilliland was tlie losing party, although our decision did not deprive her of an interest in the income which accrued prior to the death of William Stewart L. Markham. (Christian v. Waialua Agr. Co., 32 Haw. 30.)

LI. Edmondson {Smith, Wild, Beebe & Cades) for Carl Alexander Markham, for motion.

C. B. Dwight for Jennie S. Gilliland, contra.

R. B. Forbes {Robertson, Castle & Anthony) for Hawaiian Trust Company, Limited, trustee.

Section 9755 of the Revised Laws of Hawaii 1945 provides that “costs shall he allowed to the prevailing party in judgments rendered on appeal, in all cases * * * ” with certain exceptions not here applicable.

Costs in the sum of $195.75 will be taxed in favor of the appellant Carl Alexander Markham against the contesting respondent Jennie S. Gilliland. (Magoon v. Lord-Young Co., 23 Haw. 187.)  