Hawaiian Trust & Investment Co. v. Barton

OPINION OF THE COURT BY PERRY, J. This is an action of ejectment. At the close of the plaintiff’s case, the.defendant moved for a non-suit on the grounds, (1) “that plaintiff has not proved title in itself” and (2) “that plaintiff could only sue as trustee and the cestui que trust must be joined as plaintiff.” The motion was granted. The proof was that the deed relied upon by the plaintiff was to “The Hawaiian Trust & Investment Co.” with habendum to -it, its successors and assigns, in trust to pay the net income to* one Aldrich and to convey the land as directed in Aldrich’s last will or, in failure of such will, to his heirs at law. The only question argued in defendant’s brief is whether upon this proof the plaintiff can recover on a declaration wherein it is named simply “The Hawaiian Trust & Investment Oo.”, without describing itself as trustee for Aldrich, and wherein it claims “by purchase and otherwise a fee simple title.” In our opinion, the plaintiff established a prima- facie case. The deed passed the legal title to the Hawaiian Trust & Investment Co., the. plaintiff. That title was in fee simple. The purposes of the trust required it to be. The action is at law and not in equity. The equitable title is not in issue in this case, no question arising between the trustee and the cestui que trust. The case is not, as contended by the defendant, parallel with that of an administrator bringing replevin or a guardian suing in ejectment. The individual in the action of replevin has no title in himself hut his right to the property is solely by virtue of his appointment as administrator; the. title to the properly, sought to he recovered by tbe guardian is in tbe ward and, in modern -)practice at least, the action is therefore brought in the name of the ward, the guardian acting in the. matter much as an agent would act. In the case before us, on tbe other hand, the title is [643] in the corporation itself although subject to certain trusts, which the beneficiary may enforce in appropriate proceedings. Kinney, McGlanalian & Bigelow for plaintiff. Robertson & Wilder, Hatch & Sillirnan, Holmes & Stanley and G. A. Davis for defendants. See, on this .subject generally, Underhill, Trusts §789; 2 Perry, Trusts, 475; 2 Beach, Trusts and Trustees, 410, 413, 414; Flint, Trustees, 126; Loring, A Trustee’s Handbook, 22, 23; Hawkins v. Berkshire, 2 Allen 254, 258; Crane v. Crane, 4 Gray 323; Davis v. R. R., 11 Cush. 506, 509; Woodman v. Good, 6 W. & S. (Pa.) 169, 173, 174; Smith v. Portland, 30 Fed. 734, 738; Walker v. Fawcett, 29 N. C. 44, 46, 47; Treat v. Stanton, 14 Conn. 445, 451; and Cary v. Whitney, 48 Me. 516, 524, 530. The exceptions are sustained, the judgment set aside and a new trial ordered.