# O'Brien v. Walker

> Hawaii Supreme Court · August 11, 1939 · 35 Haw. 104

URL: https://www.frixlaw.com/law-library/cases/3408377

## Case

- **Full name:** Ray J. O’brien and Hawaiian Trust Company, Limited, Et Al., v. Thomas Walker, Et Al.
- **Court:** Hawaii Supreme Court
- **Decided:** August 11, 1939
- **Citations:** 35 Haw. 104; 1939 Haw. LEXIS 20
- **Precedential status:** Published
- **Opinion:** Dissent by Coke
- **Judges:** Baron, Coke, Peters, Kemp
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3408377

## How later opinions describe it (automated extraction)

- noting that courts have construed "issue" as "children of the blood" absent contrary surrounding circumstances"

## Opinion text

OPINION OP
COKE, C. J.,
CONCURRING IN PART AND DISSENTING IN PART.
I am in agreement with that part of the foregoing opinion of my associates which holds that Flora M. CroAvell (formerly Flora Hiram), one of the appellants, is entitled to the annuity granted to her in the trust deed of Mr. Cummins during her lifetime. The record sIioavs that the estate is of the approximate value of $400,000. The greater part of it can be presently distributed and a sufficient sum retained in trust to provide the annuity granted to Flora by Mr. Cummins or, as an alternative, an annuity can be purchased out of the trust corpus to accomplish the same result. I think it is reasonable to assume, as pointed out in the majority opinion, that it did not occur to Mr. Cummins that Flora would survive his four children. Otherwise, I am convinced that due to Mr. Cummins’s solicitude for Flora and his express desire that she receive from his estate the annuity during her lifetime, the provision requiring distribution at the death of his last surviving child Avould not have been inserted
*138
in the trust deed in its present form. We are confronted by two conflicting and wholly irreconcilable provisions in the deed and it is my opinion, considering all of the circumstances, that the one directing the payment to Flora during the term of her life of the sum of $30 per month most closely approximates the intent of the settlor.
I am, however, unable to concur in the conclusion reached by my associates to the effect that Margaret Mamo Clark, the adopted daughter of May Clark, can be deemed to be the “lawful issue” of the latter as that term was used by John A. Cummins in his trust deed. Nor am I in accord Avith the further conclusion that Margaret Mamo Clark is entitled to share as a distributee in any of the corpus of the trust estate. The error into which the majority, as Avell as the trial court, have fallen is due, in my opinión, to the failure to distinguish between an estate of intestacy Avhich is controlled by the statutes of descent and distribution and an estate created by a trust deed in Avhich event the intent of the trustor, as expressed in the trust document, must prevail. The Cummins trust deed was executed in the year 1896 and that instrument must noAV be read with a view to the circumstances under Avhich it was written at that period.
(Chater
v.
Carter,
22 Haw. 34, 39 , affirmed 238 U. S. 572 .) In order to ascertain the intent of the settlor this court should, as nearly as it may, place itself in the position of Mr. Cummins at the time he executed the trust instrument in 1896. Returning then to that period Ave find the settlor to be a man of property, the OAvner of a large estate, Avith a fixed purpose to make an
inter vivos
disposition of his property through the medium of a trust deed. As appears from the trust document, the primary or dominant purpose of John A. Cummins Avas to provide for his wife and himself suitable maintenance during the period of their respective lives, to also provide a small annuity to be paid to Charles
*139
Malioe (long since deceased) and to Flora Crowell during their natural lives and ultimately (i.e., at the death of the last of his children) to require that all of the trust estate be distributed to the “lawful issue then surviving” of his four children (except so much of it as would be required to provide the annuity payable to Flora). This language, considering the facts and circumstances existing at that time, clearly indicates an intent on the part of Mr. Cummins to restrict his trust property to those of his own blood to the exclusion of all others, including those Avho might subsequently have been adopted by any of his children.
While it is true that adoption was unknoAvn to the old common law, it Avas an institution of the Roman laAV in very early times. Adoption was also known to the Athenians and Spartans as Avell as to the ancient Germans and Avas familiar to the writers of the new, if not the old, testament. Adoption was also an institution of Spanish law and was incorporated into the code Napoleon and from that code found its Avay through Louisiana and Texas into the statutes of their sister States. It is quite likely that adoption Avas in vogue in the HaAvaiian Islands prior to the discovery of them by Captain Cook in 1778. Whether the practice of adoption in these Islands originated Avith the Hawaiians or Avas brought in by mariners from continental Europe or Asia who may' have visited the Hawaiian group in prehistoric time must be left to conjecture. In Hawaii and until changed by statute adoption Avas by contract and if a child was taken by the adopting parents as their
hookama
it became the heir of its adopting parents. If, on the other hand, it Avas taken merely as a
hanai,
it Avas a foster child without the right to inherit. A
hookama
was at no time deemed to be of the blood of its adopting parents. A child of the blood or the issue of its parents was designated as a
keiki ponoi,
a third and closer relationship apparently not recognized by my associates.
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Ponoi
means, belonging particularly to oneself or itself either of persons or things. “Kau keiki ponoi, thine own child, in distinction from an adopted one; o ka makuakane ame kana keiki ponoi, the father and his own child.” Andrews’ Hawaiian dictionary, p. 563. It will thus be noticed that there was nothing unusual in the ancient laws, usages or customs of the Hawaiian people respecting adoption. They were in fact strikingly similar to the ancient civil laws and, in fact, similar to the more modern statutory laws which have been enacted within the last century throughout the United States. Here, as there, we had the
hookama,
which is an adopted child, and the
keiki
ponoi, an issue of its natural parents.
The numerous Hawaiian cases referred to and extensively quoted from in the opinion of my associates, beginning with
Estate of Hakau,
1 Haw. 471 , decided in 1856, to and including
Estate of Kamauoha,
26 Haw. 439 , decided in 1922, have to do with estates of intestacy. The right of an adopted child to take under a trust deed or a will Avas involved in none of them. These decisions uniformly held that where a child was legally adopted by contract or a decree of court granting to it the right to inherit from its adopting parents it became for that purpose their child and in case of intestacy would inherit. I can find no basis wh'atsoever for the statement made and reiterated in the opinion of the majority of this coiirt “that there Avere ancient customs (or usage) of adoptions Avhich made an adopted child into one’s oavii or blood child.’,’ As early as 1871, in
Estate of Hannah
Maughan, 3 Haw, 262, 264, the court said: “In view of the customs and usages of the Hawaiians in relation to adopted children, and in vieAV of the express language of the articles of agreement, can there be a doubt that Avlien they speak of their children, they include those adopted as well as those by blood ?” Here in plain language the court distinguished
*141
between adopted children and children of the blood. And not until the decision in
Estate of Kamauoha, supra,
did the local supreme court go so far as to hold that a person legally adopted inherited through its adopting mother from her father who died intestate and was deemed for that purpose to be the issue of the adopting parent. Here again, however, the court was dealing with the right of a child adopted in 1920 to participate in an intestate estate. The statute in existence at that time (now R. L. 1935, § 4813), provided that “property shall be divided equally among the intestate’s children” and at that time there was in existence a statute enacted in 1905 (Act 83, L. 1905), which provided that “An adopted child * * * shall inherit estate undisposed of by will from its adopting parents the same as if it were the natural child of such adopting parents.” In view of these statutes, the court held, and correctly so, that a legally adopted child would take as issue in an intestate estate. But the statute of 1905 had not been enacted when Mr. Cummins executed his irrevocable deed of trust.
Again it should be emphasized that we are not concerned with the meaning of the word “issue” as construed by this court in determining the right of a child under the Adoption Act of 1905 to inherit the property of an intestate. Our problem is one of ascertainment of the meaning of “lawful issue” as used in the trust deed of Mr. Cummins executed in the year 1896. I think it clear that my associates, as well as the judge of the court below, failed to give due weight to the distinction. At the date of the execution of the trust deed three of Mr. Cummins’s children had children and his daughter May Clark, who was then twenty-two years of age, had been married only a few months and it was a natural assumption on the part of her father that in due time she would bear children; conversely he could not be presumed to have con
*142
templated tliat she would subsequently adopt a child. Up to that time no children had been adopted into the Cummins family. Nor was there in Hawaii any statute in force at that period giving adopted children the right of inheritance.
At the time of the death of John A. Cummins in the year 1913 Mamo had not been adopted by May Clark; in fact she was not even born until after the death of Mr. Cummins. The trust deed was written in the English language and it was fair to assume that Mr. Cummins not only understood the meaning of its provisions and nothing appearing to indicate the contrary it should be further assumed that he used the words “lawful issue” in their primary, common, usual and everyday sense. The word “lawful” is an antonym of “unlawful” or “illegitimate.” “Issue” when used as a noun is commonly understood to denote something that issues or emerges from something else. “To proceed as progeny.” “Of thy sons that shall issue from thee. 2 Kings
xx.
18.” Webster’s International Dictionary, p. 1318. “In common understanding the word [issue] includes natural descendants, and not children by adoption.”
Morse
v.
Osborne,
77 Atl. 403, 404 . (See also
Welch
v.
Colt,
117 N. E. 834, 836 .)
In re Gurlitz' Will,
235 N. Y. S. 705, 709, the court said: “ ‘Issue’ is a legal term, not common in ordinary conversation, and its use is persuasive of the thought that the aim of testatrix was to limit her bounty to those in whose veins the same blood as her own coursed.”
In common parlance when we speak of the issue of a person we mean a blood descendant; a child of its parents conceived by them through the process of natural procreation, thus distinguishing it from a foster or an adopted child, the latter being a relationship created artificially by contract or decree of court. Hence Mamo could not have been the issue of May Clark; she was the issue of her
*143
own natural parents, whoever they may have been. To say otherwise is to challenge a recognized biological fact. An adopted child “in fact, is — an ‘issue’ of his
natural
parents only.”
In re Russell's Estate,
130 Atl. 319, 320 . “It is well established by numerous decisions that the word ‘issue’ in a testamentary disposition may be given its primary meaning of heirs of the body, and descendants in any degree, or a meaning synonymous with the word child as commonly used, according to circumstances. * * * Where the intent is not otherwise clear, certain presumptions may be invoked. One of these is the natural one, that a testator will favor heirs of the blood, and thus, in the absence of a discoverable intent to the contrary, the word will be given its primary meaning.”
Ansonia Nat. Bank
v.
Kunkel,
136 Atl. (Conn.) 588, 590.
There is an entire absence of language in the trust deed or in the circumstances surrounding its execution which would indicate that Mr. Cummins used the word “issue” other than in its common and primary sense. It is true, as held by the circuit judge, that the ultimate takers could only be determined at a date subsequent to the execution of the trust deed but it is equally true that the class which would ultimately take is clearly designated and limited in the trust deed and neither by an Act of the legislature nor a decree of court could that class be changed in any manner. Had Mr. Cummins died intestate we would have an entirely different question to deal with. In a case of intestacy the legislature may say who shall inherit the property of an intestate. Indeed a statute might be enacted providing that the property of the deceased should be distributed among his lawful issue and further providing that the word “issue” as used in the statute should include parents of the deceased and thus by a fiction of law the anomaly might arise where parents would be deemed to be the issue of their own child. Such a law
*144
would doubtless be perfectly valid but would anyone argue that it could control the distribution of a trust estate and especially where the trust instrument had been executed long prior to the enactment of the statute?
In the
Kamauoha
case, supra, the court held that under the statute of 1905 and for the purpose of inheriting the estate of the father of its adopting mother, both of whom had died intestate, an adopted child became the issue of its adopting mother. The statute of 1905 was not in existence at the time Mr. Cummins executed his trust deed. The point is illustrated in
Schafer
v.
Eneu,
54 Pa. 304 , where the court said: “Adopted children are not children [i.e., by law of nature] of the person by whom they have been adopted, and the Act of Assembly does not attempt the impossibility of making them such. * * * The right to inherit from the adopting parent is made complete, but the identity of the child is not changed. One adopted has the rights of a child without being a child.” (See also
Moran
v.
Stewart,
26 S. W. 862 .) Even had the statute of 1905 antedated the trust deed it could not have done the work of nature and created one an issue who by nature was a stranger.
Due to the absence of any precedents in this jurisdiction dealing with the question before us in the case at bar, we naturally turn to the decisions of other courts within our common country which may be helpful. To say that the judicial wisdom of the higher courts throughout the States should be ignored on the pretense that there was something mysterious or even unusual in the ancient or modern laws, usages or customs of the Hawaiian people in respect to adoption or the rights of adopted children, is, in my opinion, wholly untenable. In fact the early-day unwritten laws and customs of the Hawaiian people were, so far as I am able to ascertain, strikingly similar to the ancient civil laws and the statutory laws enacted in Hawaii
*145
since tlie year 1840 correspond generally to tlie laws enacted in the several States since about that period.
Bearing in mind that Mamo Clark is an alien to the Cummins blood and that John A. Cummins was a stranger to her adoption, I am utterly unable to conceive how the settlor could have contemplated an artificial status that did not even exist until twenty years after he had executed his deed and in fact not until after his death. (See
Tankersley v. Davis,
142 S. E. 765 .)
The following are excerpts from a few of many decisions. of the courts which, with singular accord, have spoken on the subject.
“The result reached is one of unanimity that a limitation in a deed or will to a child or children is not deemed, to include an adopted child, where the grantor or testator is a stranger to the adoption.” Ahlemeyer
v.
Miller,
131 Atl. 54 (affirmed 137 Atl. 543 ). The court called attention to the fact that the child was not adopted until after the execution of the will and held that this fact precluded an intention to include it.
“In every case of doubtful construction in a will of the word ‘children’ the law favors ancestral blood by favoring such an interpretation as will permit the testator’s estate to pass to his own blood.”
Middletown Trust Co.
v.
Guffey,
112 Atl. 689 . It is to be observed that the terms “child” and “issue” are not synonymous, the latter having of course the more restrictive implication.
“At the time that the settlor executed the deed of trust, and for many years thereafter, neither of the adopted children * * * were in existence, therefore, as individuals in the status of children of his children, could not have specifically been in the mind of the settlor. He did know, according to the record, that some of his children had natural children and that none had adopted children. * * * When a stranger to the adoption employs the language ‘child’ or ‘children,’ relating to children other than his
*146
own, the presumption attends that he does not mean to include other than natural children. * * *
The use of the word ‘issue’ strengthens the theory that he had in mind only natural children of his children.” Rodgers
v.
Miller,
182 N. E. 654 . (See also
In re Puterbaugh’s
Estate, 104 Atl. 601 ;
Dulfon
v.
Keasbey,
162 Atl. 102 ; Thompson, Construction of Wills [1928], § 159.)
A case directly to the point is
Wilder
v.
Wilder,
102 Atl. 110 , where the court said: “Wliat is the legal effect of the present statute regulating adoption so far as property rights are concerned? In strictness it simply fixes the status of the adopted child in case of the intestacy of his adopters, where the rights of inheritance are' involved. It is also held to have a hearing upon the intention of the grantor or testator who is himself the adopter. But it is of no particular aid in determining whether an adopted child is within or without the designation of ‘child’ or ‘children’ as used in a deed or will where the grantor or testator is other than the adopter. The right of inheritance by the adopted child is a matter of statutory creation; the taking under a deed or a will depends upon the intention of the- grantor or testator, as revealed by the instrument itself construed in the light of the surrounding-facts and conditions.
Where the grantor or testator is the adopting parent it is reasonable to presume that the adopted child toas within the intended bounty of such grantor or testator. But where he is a stranger to the adoption such presumption does not prevail. The distinction between the limitation of the statute to the inheritance rights of the adopted child and the rule governing the construction of a deed or will of a stranger to the adoption is clear,
and it has been observed in previous decisions of this court.”
One of the cases strongly relied upon by counsel for Mamo Clark is
Hartwell
v.
Tefft,
19 R. I. 644. The decision
*147
in that early Rhode Island case has not been, so far as I am able to ascertain, followed in any other jurisdiction. In
Smith
v.
Bradford,
154 Atl. 272, 274 , a later Rhode Island case, the court, referring to
Hartwell
v.
Tefft,
said that it was “often cited as an authority opposed to the rule applied in other cases that the testator’s intention must govern” and “to that extent it must be considered no longer binding as an authority.”
Tirrell
v.
Bacon,
3 Fed. 62 , is given prominence, not only in the briefs of counsel for Mamo Clark, but in the opinion of my associates. That case is, however, clearly distinguishable from the one at bar. It involved a devise of the residue of the testator’s estate in trust to pay the income to the testator’s wife for life and upon her death to his children in equal shares and on the death of each child to convey his or her share of the property to his or her children. The testator died in 1857, leaving eight children. In 1879 one of the children, Edward, died leaving only an adopted child, the adoption having taken place in 1874. The limitations in the will after the death of the testator’s wife were (1) “to his children” (2) “upon the decease of each child * * * to his or her child or children then living” and (3) “to the lawful issue then living of any deceased child of such child.” In view of the fact that Edward, one of the testator’s sons, died and left an adopted child, the question before the court was whether the adopted child was a child within the meaning of the second limitation. The court held that under an existing Massachusetts statute the adopted child was a child within the meaning of the will. The third limitation “to the lawful issue” was not involved so that the court was not called upon to determine whether the adopted child of Robert was “lawful issue” and in fact did not do so.
Tirrell
v.
Bacon,
supra, involved the construction of a statute of Massachusetts then in force and is based
*148
upon tlxe authority of
Sewall
v.
Roberts,
115 Mass. 262 . The later Massachusetts case of
Blodgett v. Stowell,
189 Mass. 142 , repudiated the doctrine adopted in
Sewall
v.
Roberts. Blodgett
v.
Stowell, supra,
was cited with approval in
Gallagher
v.
Sullivan,
251 Mass. 552 ;
Hutchins
v.
Browne,
253 Mass. 55 and
In re Book’s Will,
105 Atl. (N. J.) 878, where the court, after pointing out that “the word ‘issue’ in a devise is equivalent to heirs of the body,” then said: “Sewall v. Roberts * * * and those cases resting upon the broad language of the courts there used, are not persuasive in this state; the weight of authority in foreign jurisdictions where the statutes * * * have been identical with those at bar is in accord with my conclusion.”
Wilder
v.
Wilder, supra,
is to the same effect, the court saying: “Tirrell v. Bacon rests on Sewall v. Roberts, and, together with that case, is not to be regarded as an authority in the case at bar.”
The present case does not involve the question of the right of an adopted child to inherit from an intestate but it does involve the question of Mr. Cummins’s intention with respect to those who are to ultimately share his trust estate. I can see nothing in his trust deed or in the circumstances surrounding its execution indicating an intention on his part to include within his bounty a child adopted by his daughter not only many years after the execution of his trust deed but in fact subsequent to his death.
Both upon reason and the entire weight of authority, it is my opinion that Mamo Clark is not entitled to participate in the distribution of the corpus of the trust estate of John A. Cummins and being further of the opinion that Flora Crowell is entitled to enjoy the annuity provided for her in the Cummins trust deed during her lifetime, the decree appealed from should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3408377. Public record. Not legal advice.