Hawaiian Trust Co. v. Wilder

— 437 — OPINION BY MIZUHA, J., IN WHICH TSUKIYAMA, C.J., JOINS. Harriet Emily Wight died in 1958 leaving a will disposing of her entire estate (see appended note). The property bequeathed and devised in the disputed residuary clauses of her will consists of: personal property, $233,358.07,1 and real property, $443,000.00,2 but the debts, administration expenses and taxes to be paid by the estate are estimated by the executor to amount to $251,700.00. General legacies amount to $31,500.00. The approximate deficiency in the residuary personalty to pay debts, administration expenses and taxes amounts to $18,341.00, plus $31,500.00 to pay general legacies, or a total of $49,841.00. The executor brought the proceeding in the lower court for instructions as to which of the testamentary gifts were to be charged with the payment of the debts, administration expenses and taxes in the event of a deficiency, and as to the order in which the testamentary gifts should be abated. — 438 — The lower court found that the debts, administration expenses and taxes should be paid out first from the residuary personal property in Article 6 and then from the residuary real property in Article 7, and that the gift of the residuary real property in Article 7 should be charged for the payment of general legacies. Two of the remaindermen, Ellwood C. Wilder, Jr., and Wilder Wight have appealed contending that the trial court erred in defining the gift of real property in trust in Article 7 as a residuary gift, and in failing to rule that it was a specific devise, or in any event, in failing to find that the real property should be resorted to in abatement only after the exhaustion of all gifts of personal property. The questions presented are as follows: 1. Is the gift of real property in trust made by Article 7 of decedent’s will a residuary devise as ruled by the lower court or a specific devise? 2. If the gift of real property in trust made by Article 7 is a residuary devise, is it charged by Article 1 of decedent’s will for the payment of all debts, funeral expenses, administration expenses and all estate and inheritance taxes? 3. If the gift of real property in trust made by Article 7 is a residuary devise, are general legacies payable out of the proceeds of residuary realty after the exhaustion of residuary personal property? By Article 7,3 testatrix devised, along with $25,000.00 in cash and/or securities, “all of the rest, residue and remainder of my real property, including all lands and improvements thereon, and all rights, privileges and ease — 439 — ments appertaining thereto, to HAWAIIAN TRUST COMPANY, LIMITED, * * * in trust * * *.”4 Article 6 of decedent’s will reads as follows: “I give, devise and bequeath the rest, residue and remainder of my property, wherever situated and of whatever nature, absolutely, as follows: * * *” No question is raised as to Article 6 and its status as a residuary clause is undisputed. However, the appellants contend that Article 7 is not a residuary devise of real property. They argue that it is a specific gift of the balance of the testatrix’s Nuuanu real property, urging in main the following reasons: (1) that the testatrix had owned only one piece of land, the Nuuanu property, for the period of approximately twenty-six years preceding her death; (2) that just one year prior to making her will, the testatrix had registered the title to her Nuuanu property in the Land Court of Hawaii; (3) that numerous provisions of Article 7 could not possibly have had application to any real property other than the Nuuanu property; and (4) that the testatrix had constantly referred in her will to the land devised by Article 7 as “my real property.” The lower court held the gift in Article 7 to be a residuary devise of real property stating as follows: “* * * In the first place, the decedent described the property in general terms. In the second place, after — 440 — the deeedent had executed her will which contained the gift of the residue of her real property, she executed two codicils in which she carved two specific gifts of real property out of the residue of her real property. Furthermore, the decedent did not intend that the real property passing under Article SEVENTH go to the particular individuals since she directed that the trustee sell the remaining property and distribute the proceeds among certain named persons. Finally, these named persons who were to receive the proceeds from the remainder of the real property were the same persons who were to receive the ultimate remainder of her other property under Article SIXTH. All of these considerations lead the Court to conclude that the gift of the residue of decedent’s real property under Article SEVENTH, was not specific, but was a general, residuary gift.” A will may sometimes contain several residuary clauses. 4 Page, Wills, § 33.60; Moffett v. Elmendorf, 152 N.Y. 475, 46 N.E. 845; Equitable Trust Co. v. Delaware Trust Co., 30 Del. Ch. 348, 61 A.2d 529; Salem Nat’l Bank & Trust Co. v. Harkins, 140 N.J. Eq. 82, 53 A.2d 373. See also Downs v. Casperson, 20 Del. Ch. 119, 171 Atl. 753. In Moffett v. Elmendorf, supra, the court found three residuary clauses, one for personalty, one for realty not otherwise disposed of, subject to certain conditions, and one for realty in general. In Equitable Trust Co. v. Delaware Trust Co., supra at 533, the testatrix specifically provided: “ ‘Item VII. * * * I give and bequeath * * * and all other personal property at “Dunleith” or elsewhere, * * * ******** “ ‘Item IX. All other real estate of which I die seized and all other real estate over which I have any — 441 — power of appointment, I give and devise * * *. ******** “ ‘Item XII. All the rest, residue and remainder of my estate, whether real, personal or mixed and which I may now or hereafter acquire, and all other property of any character with respect to which I may have a power of appointment at the time of my death, I give, devise and bequeath * * *.’ ” The Delaware court rejected the contention that Items VII and IX merely provided for specific gifts and held them to be residuary clauses. It further stated: “* * * The gift of the enumerated kinds of property in that Item [VII] may be specific, but the additional gift of ‘all other personal property at “Dunleith” or elsewhere’ is a residuary gift. It covers all tangible personal property belonging to the testatrix as well as that over which she had a testamentary power of appointment, no matter where located. * * * ******** “The devise of ‘all other real estate’ * * * in Item IX is likewise a particular residuary devise and includes all real property not otherwise disposed of, as well as all interests in real property ineffectively given or appointed by other items of the will and the codicil. * * * ******** “The general residuary clause (Item XII) is, however, applicable to any other personal property, not of a tangible nature, belonging to the testatrix and that over which she had a testamentary power of appointment, including the ineffective gift of $25,000, that may be left after the payment of debts, expenses, taxes and legacies.” Equitable Trust Co. v. Delaware Trust Co., supra at 541. That which is to be sought in the instant case is the — 442 — intention of the testatrix as expressed in the will. 95 C.J.S., Wills, § 590; In re Campbell’s Estate, 33 Haw. 799; In re Foster’s Estate, 33 Haw. 666; Kinney v. Robinson, 30 Haw. 246. In paragraph (a) of Article 7, testatrix stated: “(a) My principal purpose in creating this trust is to provide an ample period for my present tenants to find other places of abode. It is also my desire that my real property be sold by my Trustee, to the extent feasible, so that the beneficiaries of my estate shall receive property in sole ownership rather than undivided interests in my real property. I direct that the provisions of this Will shall be liberally construed to accomplish this purpose and desire.” By Article 7, if the testatrix acquired additional land during her lifetime by way of inheritance, gift, purchase or otherwise, it clearly would have constituted part of the rest, residue and remainder of her real property. Furthermore, certain of the specific devisees and one of the ultimate devisees were to take only on condition of surviving the testatrix. Clearly, any lapsed devises of real property would pass under Article 7 of the will for it would be part of “all the rest, residue and remainder” of the real property. See Spencer v. Bishop, 31 Haw. 259; Paiko v. Boeynaems, 22 Haw. 233. The language indicates that the testatrix thought of the rest, residue and remainder of her real property not as real property in its physical form but something that could be converted into cash and form a part of her residuary estate. She further did not contemplate ultimate beneficiaries in Article 7 to receive undivided interests in residuary real property but only the proceeds from same. Ultimate beneficiaries who were to receive the proceeds from the sale of the remainder of the real property under Article 7 were the same persons named as ultimate beneficiaries of the remainder of her — 443 — personal property under Article 6. A combination of all the foregoing elements considered as a whole clearly indicates that the testatrix did not intend Article 7 to be a specific devise of real property. See In re Noholoa's Estate, 18 Haw. 265, affirmed Gray v. Noholoa, 214 U.S. 108. We are unable to find any language in the will which shows that the testatrix used the phrase “rest, residue and remainder of my real property” in any other than its usual and technical sense to describe the gift in Article 7. Kinney v. Oahu Sugar Co., 23 Haw. 747, affirmed 255 Fed. 732 (9th Cir. 1919), cert. denied 249 U.S. 616. In this connection, it is to be noted that, where the phrase “the residue of my estate” was used, this court, in Estate of Rowat, 31 Haw. 92, acknowledged the technical connotation ordinarily attributed to the word “residue” as used in a will, when it said at page 94: “* * * Attributing to the word its ordinary meaning, the ‘residue’ of his estate can only be that which is left after satisfying the provisions of the preceding five specific legacies.5 The residue means what is left, not only after setting aside the furniture, the automobile and the personal effects for the widow, but also after setting aside the four gifts of $500 each to certain of his children. * * *” In Rowat, supra, the question was whether, since there was no residuary personal property out of which the general legacies could be paid, the same should be paid out of the residuary realty. This court held at pages 96-97: “* * * Under these circumstances the four specific legacies are payable out of the proceeds of the real estate not, strictly speaking, because the testator made them a charge upon the realty, but because, to the extent that the realty was necessary to provide the means — 444 — for the payment of the four legacies, to that extent the realty was not by the residuary clause devised to the residuary beneficiaries.” This court also quoted with approval the following from Greville v. Browne, 7 H.L. Cas. 689 (11 Eng. Reprint, 275, 278, 279) at page 95: “ ‘For nearly a century and a half this rule has been laid down and acted upon, that if there is a general gift of legacies, and then the testator gives the rest and residue of his property, real and personal, the legacies are to come out of the realty. It is considered that the whole is one mass; that part of that mass is represented by legacies, and that what is afterwards given, is given minus what has been before given, and therefore given subject to the prior gift.’ * * *” The testatrix expressed in clear language by Article 1 of her will as follows: “I direct my executor hereinafter named, to pay all my just debts, funeral and administration expenses and also to pay out of my residuary estate, all estate, inheritance, succession and transfer taxes * * This language which is unambiguous is binding on the court and we cannot rewrite the will of the testatrix nor vary its provisions. Where the intention of the testatrix as expressed in her will is manifest her intention must control, Unless it be contrary to some rule of law or public policy. In re Campbell’s Estate, supra; In re Foster’s Estate, supra; Kinney v. Robinson, supra. The testatrix, in charging the residuary estate under Article 1 with the payment of all debts, administration expenses and taxes, indicated clearly her intention that residuary real property and personal property were to pay her debts, administration expenses and taxes. However, she did not indicate whether residuary personal property and residuary real property should be charged equally or whether one should take precedence over the other. — 445 — The function of the court is to ascertain, if possible, the intent of the testatrix as she has expressed it in the will, and when there is “uncertainty or incompleteness of expression in the will, to accept the aid of evidence of surrounding circumstances which will place the court as near as may be in the position of the testator as of the time he made the will. * * *” Mercer v. Kirkpatrick, 22 Haw. 644, 647. The surrounding circumstances include the state of the law at the time of the execution of the will and the testator must be presumed to have acted with knowledge of applicable statutory provisions and rules of law. Under the provisions of R.L.H. 1955, § 317-27 (Supp. 1961),6 unless a contrary direction is expressed in the will, residuary personal property must first be exhausted for the payment of debts, administration expenses and taxes before residuary real property. Throughout its long — 446 — legislative history,7 this section recognized the continued application in Hawaii of the common law rule that the residuary personal property of the decedent must be first used for the payment of debts, and that resort may be had to residuary realty for such purposes only when the residuary personal estate is exhausted. In the instant case, it is not necessary to reach the question as to the order of abatement of all the gifts in the will inasmuch as the residuary realty amounting to approximately $443,000.00 is sufficient to pay the remainder of debts, administration expenses and taxes and all the general legacies. The rule of the Rowat case, supra, is in accord with the principle that the intention of the testatrix as exhibited by the will must control. Most of the general bequests, in the amount of $31,500.00, were in small amounts signifying tokens of appreciation and remembrances. It is more reasonable to assume the testatrix, instead of wiping out her several general bequests completely in the event of insufficiency, intended that such bequests should be met from her residuary real property in the event her residuary personal property was insufficient to pay same. Any other construction would attribute to the testatrix an intention that her numerous gifts were made merely as an outward show and not in reality. Such a hollow and empty gesture should not be imputed to the testatrix. Cf., Dunken v. Wallace, 114 Ind. 169, 16 N.E. 137; Hoyt v. Hoyt, 85 N.Y. 142. Clinton R. Ashford (Stephenson, Ashford & Wriston on the briefs) for Ellwood C. Wilder, Jr., defendant-appellant. George M. Eoga (also on the briefs) for Harry Uemura and Yuriko Uyemura, defendants-appellees. Eiehi Oki (Charles M. Rite with him on the briefs) for Daughters of Hawaii, defendant-appellee. James S. Campbell (Smith, Wild, Beebe & Cades with him on the brief) for Hawaiian Humane Society, defendant-appellee. Wilder Wight filed briefs for himself but was deceased at time of argument. Richard E. Stifel (Anderson, Wrenn & Jenks on the brief) for plaintiffs-appellees and Edna G. Chamberlin, defendant-appellee. John F. Alexander, Guardian Ad Litem for Alice I. Uyemura, Ann Uemura, Edna Uemura, Ella Uemura, Kathleen Uyemura, Lita Thompson, Ellen Lita Wight, Elizabeth Allen Wight, Laura Mildred Wight and Melinda Lani Wight, defendants-appellees. (Filed no brief and did not appear to argue.) Allen M. Stack (Pratt & Tavares) for Elizabeth Low Lucas, defendant-appellee. (Filed no brief and did not appear to argue.) Therefore, we reaffirm the rule in the Estate of Rowat case, supra, that when a testatrix, after providing in her will for pecuniary general legacies, disposes of “the rest, residue and remainder” of her property by residuary clauses, and residuary personalty is insufficient, general legacies are payable out of the proceeds of residuary real property, because, to the extent that residuary realty is necessary to provide the means for the payment of general legacies, to that extent realty is not devised by the residuary clause to the residuary beneficiaries. Affirmed. Circuit Judge Dyer concurs in the result. Edward N. Sylva for Millie F. Rawlins, Executrix of the Will of Wilder Wight, deceased, defendant-appellant. NOTE (Appended to opinion of Mizuha, J.) “FIRST: I direct my Executor hereinafter named to pay all my just debts and funeral and administration expenses and also to pay out of my residuary estate all estate, inheritance, succession and transfer taxes imposed by the United States or any state, territory or possession thereof on my estate and on all devises and bequests given hereby or by any codicil hereto, including all such taxes imposed by reason of my death, although measured by property, including insurance proceeds, not subject to the possession or control of my Executor. My Executor shall not seek to recover any such tax or any part thereof from any person receiving property by which the tax is measured. ********* “SEVENTH: I give, devise and bequeath the sum of Twenty-five Thousand Dollars ($25,000.) in cash or securities, or partly in cash and partly in securities, such securities to be selected by my Executor and to be valued for this purpose in accordance with the values determined by appraisal in the probate administration of my estate, and all of the rest, residue and remainder of my real property, including all lands and improvements thereon, and all rights, privileges and easements appertaining thereto, to HAWAIIAN TRUST COMPANY, LIMITED, a Hawaiian corporation having its principal office in Honolulu, to have and to hold the same to it and its successors in trust upon the following trusts: “(a) My principal purpose in creating this trust is to provide an ample period for my present tenants to find other places of abode. It is also my desire that my — 449 — real property be sold by my Trustee, to the extent feasible, so that tbe beneficiaries of my estate shall receive property in sole ownership rather than undivided interests in my real property. I direct that the provisions of this Will shall be liberally construed to accomplish this purpose and desire. “(b) My Trustee shall permit all of the persons who at the time of my death, as my tenants, shall be occupying or using portions of the real property devised to my Trustee to continue to occupy or use portions of my real property upon the same rental and subject to the same terms and conditions as shall be subsisting at the time of my death. My faithful servants, HARRY UEMURA and YURIKO UYEMURA, have been occupying and using portions of my real property without rent, and I direct that they shall be permitted to continue such occupancy and use, free of rent and without impeachment for waste, during the term of this trust. The determination of my Trustee with respect to the lands occupied or used by any of my said tenants and said servants, and with respect to the rent and other terms and conditions of such occupancy or use, shall be binding and conclusive upon all persons interested in the trust estate created hereby. In the event that my Trustee shall deem it desirable to do so for the purpose of facilitating the sale or subdivision of said lands, my Trustee may give to any of my said tenants and servants occupancy in other portions of said lands, in substitution for the benefits herein provided, upon such terms and conditions as my Trustee in its discretion shall deem equally beneficial. My Trustee shall be empowered to sell or otherwise dispose of my said real property, in exercise of the powers hereinafter conferred upon my Trustee, upon making such arrangements as it shall determine will assure to my said tenants and said servants continued occupancy or use of said portions of my real property in — 450 — accordance with my. intention herein expressed, and the determination of my Trustee with respect to any such arrangements shall be binding and conclusive upon all persons interested in said trust estate, including my said tenants and servants. My said tenants and servants shall not be entitled to assert against any purchaser any rights of occupancy or use provided in this Will, except such ■as may be provided through arrangements made by my Trustee upon such sale, and no purchaser from my Trustee shall be bound to inquire into the validity, expediency or propriety of any such sale or of the arrangements made by my Trustee with respect to the continued occupancy or use of such property by my said tenants and servants. The rights and privileges conferred upon my said tenants and servants shall in each case be deemed personal, and shall not be subject to claims of their creditors or others, nor to legal process, and may not be voluntarily or involuntarily alienated or encumbered. ********* “(d) This trust shall terminate upon the expiration of the period of five years following the date of my death, and upon such termination my Trustee shall transfer, convey and deliver, absolutely and free from any trust, all of the principal of the trust estate as follows: ********* “SIXTH: I give, devise and bequeath the rest, residue and remainder of my property, wherever situated and of whatever nature, absolutely, as follows: “One-half (%) thereof to my said niece, EDNA G. CHAMBERLIN, if she shall survive me, or if she shall not survive me in equal shares to those who shall survive me of her children and of the issue of any of her children who shall predecease me, such issue taking per stirpes by right of representation in each generation. “The remaining one-half (%) thereof, or all thereof if — 451 — neither my said niece, Edna G-. Chamberlin, nor any of her children or issue of her children shall survive me, as follows: “The sum of Two Thousand Dollars ($2000.) to my brother, ELWOOD C. WILDER, if he shall survive me; * * * a Footnotes [1] Value of securities sold plus estimated value of unsold securities, dividends and cash on hand. [2] Total value of 71.639 acres of real estate owned by testatrix appraised at $500,000.00, approximately $7,000.00 an acre. There are approximately 63.472 acres involved under the disputed real property residuary clause. [3] Article 7 is here mentioned before Article 6 for the reason that by an apparent error in enumeration, the will in question contains two Article 6’s and two Article 7’s. Unless otherwise expressly stated, the Article 7 and Article 6 here discussed will have reference to the first Article 7 and the second Article 6 in the order in which they respectively appear in the will. [4] Article 7 is in its entirety a trust arrangement providing, among other things: (1) the testatrix’s principal purpose and desire with respect to such trust; (2) direction that her servants be permitted to occupy portions of her real property free of rent after her demise during the term of the trust; (3) the trustee’s power to sell or otherwise dispose of her real property; (4) the trustee’s power to accumulate net income; (5) the duration of the trust; (6) the beneficiaries of the trust; (7) the trustee’s full power and authortiy to manage and control the trust estate; (8) the trustee’s power to participate in transactions affecting any form of security forming part of the trust estate; (9) the trustee’s power to distribute the trust estate at the termination thereof “wholly in kind or wholly in money, or partly in kind and partly in money” in their sole discretion; and (10) waiver of the trustee’s bond. [5] Although this court referred to the five gifts as specific legacies, the four cash gifts of $500.00 each were general legacies. [6] K.L.H. 1955, § 317-27 (Supp. 1961), reads as foUows: “§ 317-27. Real estate; sale. The real property of a decedent shall be subject to sale by the administrator or by the executor unless power to sell is given by the will, only when authorized by the court. The court may authorize such sale for payment of expenses of administration, family allowance, estate and inheritance taxes or debts, or whenever such sale appears to the court to be for the best interests of the estate and not inconsistent with the will, whether or not the personal property of the estate has been exhausted. In every such case of a sale of real property and payment of part or all of the proceeds for any of the aforesaid purposes the residue of the proceeds, if any, shall be considered as real property and, together with any available personal property of the estate, equal, so far as the same is sufficient, in inventoried value to the amount of the proceeds so expended in the payment, shall be distributed among the same persons and in the same proportions as the real property would have been if it had not been sold, so that the values of the portions of the estate received by the persons entitled to share therein shall, as nearly as possible, amount to the same as if personal instead of real property had been sold. In every such case of sale of real property without payment of any part of the proceeds for any of the aforesaid purposes, the proceeds shall be considered as real property and shall be distributed among the same persons and in the same proportions as the real property would have been if it had not been sold. For the purposes of this section, real property includes a leasehold interest in real property with an unexpired term of ten years or longer or a leasehold interest in real property together with an option to purchase the leased premises or some part thereof.” [7] The case of Estate of Kamaipiialii, 19 Haw. 163, involved unnecessary legal expenses, and this court’s express disapproval of an attempted sale of the real estate of minors to pay them. It also held that an order for the sale of realty to pay debts is properly vacated, when, among other things, it appears that there was no showing that the personalty had proved insufficient under the original version of section 317-27. It also construed the statute to mean that under that statute, realty could not be sold to pay expenses of administration, but only available to pay the debts of the decedent. This last mentioned holding resulted in a legislative amendment of the statute in 1929, whereby “payment of expenses of administration, family allowance, and inheritance taxes” was permitted. S.Ii.H. 1929, c. 45, § 1.