
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1879.
    
      Harris,- G. J., Judd and MoGully, J.J.
    
    In the Matter of the Estate of His Late Majesty Lunalilo, Deceased.
    on a request erom the. trustees eor instructions.
    The petition oe the Trustees appointed by the will of the deceased shows that they have in possession in cash $28,228.09, and ask for directions as to its investment.
    The wlU leaves the testator’s real estate to his Trustees in trust to sell the same at public or private sale- and invest the same till the amount realized from such sale or by additions from other sources shall be $25,000, and then directs that they shall expend the whole amount in the purchase of land and in- the erection of a building or buildings on the Island of Oahu for specified eleemosynary purposes. Another clause of the will says, that in case sufficient buildings shall be furnished for the purposes specified from other sources, the income of the sum realized from the sale of the testator’s real estate shall be expended in repairs of said buildings, and in support of the inmates thereof;
    Held, that no part of the said sum of $25,000 can be used for any purpose but the erection of buildings, and that the Trustees proceed at once to purchase the ground and erect the buildings required.
   The trustees of this estate set forth that from the sales of property belonging to- said estate, they have- cash- assets in their hands amounting to- $28,228.09, and ask for directions.

The question at the hearing, was, whether the sum should be invested on bond and mortgage, to* the end that when the buildings contemplated by the will of his late Majesty shall have been constructed, there may be something left to keep the buildings in repair and to maintain- the inmates, or whether it is the duty of the trustees to commence to build immediately and expend tbe sum of $25,000 in tbe ground and buildings.

Tbe will of bis late Majesty devises to bis trustees, wbo are to be nominated by tbe majority of tbe Justices of tbe Supreme Court, or tbe Court of tbe bigbest jurisdiction in these Hawaiian Islands, all bis real estate to be held by them (said trustees) in ¡trust for tbe following purposes, to wit: “ To sell and dispose of said real estate to tbe best advantage at public or private sale, and to invest tbe proceeds in some secure manner, until tbe aggregate sum shall amount to $25,000, or until tbe sum realized by tbe said trustees shall, with donations or contributions, from other sources, amount to tbe said sum of $25,000; then I order the trustees (to be appointed as aforesaid) to expend tbe whole amount in tbe purchase of land and in tbe erection of a building or buildings on tbe Island of Oahu, of iron, stone, brick, or other fireproof material, for tbe use and accommodation of poor, destitute and infirm people of Hawaiian (aboriginal) blood or extraction, giving preference to old people, upon such terms, rents or charges as to tbe said majority of tbe Justices of tbe Supreme Court, or Court of bigbest jurisdiction in these Hawaiian Islands, shall seem proper.”

It is evident that tbe testator, at tbe time of making this will, did not suppose that bis real property would be so valuable as it has since proved to be. He even appears to have thought it quite possible that it would not realize upon sale so much as $25,000; and, if such should be tbe case, be directed that it should be invested until, by tbe force of its own accumulation, or by tbe addition of donations from other persons, it should amount to said sum of $25,000, which be evidently thought to be tbe smallest sum necessary for tbe foundation of tbe chaiity which be contemplated. But bis further commands are, that when the sum of $25,000 shall have been realized, tbe ground should be purchased and tbe building commenced, and tbe whole sum of $25,000 expended.

The question is asked of us, if tbe whole sum should be thus expended, how are the trustees to maintain the building and the inmates? The answer is, that the deceased has so ordered, and the trustees must fulfill the wishes of the deceased. The testator probably had good reasons for the disposition which he made, and, upon inspecting his will, good reasons will appear on the face of it. Nor he evidently contemplated that his example will be the inducement for others to add to the efficacy of the charity the foundation alone of which he is laying, and farther, he did not contemplate that the inmates were to be maintained out of this charity, for he says that buildings are to be erected for the use and. accommodation of the poor-, destitute and infirm, upon such terms, rents and charges as to the majority of the Justices of the Supreme Court shall seem proper; and this is more apparent by a subsequent clause, where he says: “But, in case sufficient buildings shall have been provided (from some other source) for the use and accommodation of poor, destitute and infirm Hawaiians as aforesaid, then I hereby order and direct that the said trustees shall apply the net rents, issues and profits arising from the principal sum realized from the said real estate, when sold as aforesaid, towards the maintaining of the said buildings in repaii’, in their improvement, and towards the support and maintenance of the inmates aforesaid as in the opinion of the said trustees shall seem best.” - Other words can scarcely make the meaning more plain than the words used by the testator. None of the rents, issues and profits arising out of the $25,000 is to be used for the repair of the buildings, their improvement, or the support of inmates, until a building or buildings sufficient for the purpose — that is to say, as sufficient as $25,000 will provide — shall have been erected. But if other pei’sons shall provide sufficient buildings, or partially provide them, so that there will be either the whole or a part of the whole $25,000 remaining, then, and not till then, the rents, issues and profits of the sum so remaining shall be devoted to the repair or improvement of tbe buildings and tbe maintenance of inmates. "Whereas, therefore, the sum of $25,000 has accumulated in the hands of the trustees, it is hereby ordered that they proceed forthwith to purchase the ground and erect the buildings required.

Honolulu, February 20, 1879.  