
    KAPEKA M. CUMMINS, AND KAPEKA M. CUMMINS AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF JOHN A. CUMMINS, DECEASED, v. THOMAS B. CUMMINS, MATILDA K. WALKER, JANE P. MERSEBERG, MAY I. KIBLING AND H. CUSHMAN CARTER, AS TRUSTEE.
    Appeal erom Circuit Judge, Eirst Circuit.
    Argued November 10, 1913.
    Decided November 14, 1913.
    Robertson, C.J., Perry and De Bolt, JJ.
    
      Trusts — disposition of income — apportionment of tames.
    
    Under a trust, created by deed, “out of tbe net income * * * after payment of all taxes * * * to pay” to the grantor “tbe entire net income * * * for life,” the taxes on tbe trust property for tbe year 1913 are not apportionable between tbe estate of tbe grantor, who died on March 21,1913, and tbe remaindermen but are payable wholly out of tbe income that would otherwise go to tbe grantor.
   OPINION OP THE COURT BY

PERRY, J.

On October 1, 1896, a deed was executed by John A. Cummins as party of the first part, Kahalewai Cummins, his wife, as party of the second part, and Joseph 0. Carter as party of the third part, whereby Cummins conveyed certain property to Carter in trust “to collect the rents, issues and profits arising or issuing out of the said trust estate and to manage and care for the same,” with certain powers relating to changes in the form of the investments, and upon further trusts expressed as follows: “out of the net income of the said trust estate and of the property for the time being representing the same, after payment of all taxes and other necessary costs or expenses for the care and maintenance of said trust estate, to pay to the party of the second part, for and during the term of her natural life, * * * a monthly allowance of One Hundred and Fifty (150) Dollars, which said allowance is hereby made a preferred and first charge upon the net income of the trust estate, the balance of the said net income to be paid in quarterly instalments to tbe party of the first part for and during tbe term of bis natural life, and from and after tbe death of tbe party of tbe second part, tbe entire net income of said trust estate shall be paid to tbe party of tbe first part for life, and from and after bis death, tbe said net income shall be paid, share and share alike” to tbe children of tbe parties of tbe first and second parts. Kahalewai Cummins died “soon after the execution of tbe said trust deed” and John A. Cummins on March 21, 1913. Tbe complainant is tbe sole devisee under and executrix of tbe will of John A. Cummins and in this suit prays for an accounting by H. Cushman Carter, successor to tbe original trustee, and for an order directing tbe trustee to pay to her all moneys in his bands “to which, under tbe provisions of tbe said trust deed, tbe said John A. Cummins was at tbe time of bis death entitled.”

At tbe trial it was stipulated by tbe parties “that tbe income from said estate on an average is from six to seven hundred dollars per month, except tbe months of June and November of each year pi each of which months said income was increased to tbe extent of one thousand nine hundred dollars, rent from Waimanalo Sugar Company and tbe usual expenses were increased during each of said months to tbe extent of seven hundred and fifty dollars, tbe semi-annual rent paid to tbe Territory of Hawaii for tbe Waimanalo Lease”; that at tbe time of tbe death of John A. Cummins tbe trustee bad on band tbe sum of $1674.23 derived from income; and that tbe taxes assessed against tbe property of tbe trust for tbe year 1913 amount to tbe sum of $2471.16. Tbe only question presented by the appeal is whether, as declared in tbe decree appealed from, the sum of $1674.23 was properly applied by tbe trustee to tbe payment of tbe taxes or whether, as claimed by tbe complainant, tbe whole or a part at least of that sum should be paid to tbe executrix for tbe benefit of tbe 'estate of tbe decedent.

Tbe contention on behalf of tbe complainant is that “tbe evi- ' dent intent of the provision in the deed of trust was that at the end of each quarter” the grantor “should receive what was on hand”; that “it was not intended that the trustee should hold the income until the end of the year, or until the taxes had been paid, or that they should be paid, contrary to custom, during the first quarter”; and that at least the taxes for the year should be equitably apportioned with reference to the date of the grantor’s death and the resulting balance out of the sum of $1674.23 be paid to the grantor’s estate.

In this jurisdiction there is no statute providing for the apportionment of rents or annuities or of the expenses deductible from the gross income of trust funds; and at common law such apportionment was not recognized. 2 Perry, Trusts (6th ed.), §556; Kearney v. Cruickshank, 117 N. Y. 95, 98. The question involved is purely one of construction of the provisions of the instrument creating the trust. The language of the deed is clear. The income which is to be paid in part to the grantor during his wife’s life and wholly to him after her death is only that which remains “after payment of all taxes” and other necessary expenses. Until the taxes- are paid or provided for there can be no “net income.’.’ Property taxes do not accrue from month to month or at other stated intervals during the year but are imposed by law arbitrarily as of the first day of January of each year and become a fixed liability, and their payment is enforceable by suit, at least as early as the last day of January of each year. Keola v. Maui Auto Co., 20 Haw. 575. Ordinarily, perhaps, taxes are not paid or their payment enforced, as to the first half, until May 15 of each year and as to the second half until November 15 of each year. Nevertheless the trustee’s legal liability existed as early as January 31, 1913, and payment by him on or immediately after 'that date would have been in conformity with his duty imposed by statute. Under the circumstances the outlay for taxes cannot be apportioned between the grantor and the remaindermen, just as an expenditure for repairs made during the month of January, 1913, could not have been apportioned. In view of tbe provisions of tbe deed of trust there was no net income on band at tbe time of tbe grantor’s death and tbe contentions of tbe complainant cannot be sustained.

B. P. Quarles (Andrews & Quarles on tbe brief) for complainant.

I. M. Stavnback (Holmes, Stanley & Olson on tbe brief) for tbe trustee.

Tbe decree appealed from is affirmed.  