This is a bill for construction of will and in the alternative for authority to deviate brought by the trustees under the will of James Campbell, deceased. By amended petition the trustees pray that the court of equity construe the will to determine whether they have power with respect to certain lands of the trust to execute valid leases for the definite term of fifty-two years, irrespective of a prior termination of the trust, and if the will be construed as not *Page 544 giving them such power, that an authorization be granted permitting them to deviate from the will, so construed, by executing such long-term leases for those lands. At this juncture, it is pertinent to note that the residential lands of the testator were not made subject to the trust by the will and that the trust itself as to the trust realty is of uncertain duration ending twenty years after the death of the survivor of the testator's four children, only two of whom are now living, aged sixty and seventy years, respectively. But the probable duration, based on mortality tables as to the life expectancy of the younger of those two children and the final twenty-year period of the trust, is thirty-four years which nevertheless is indeterminate because the life of the trust might be considerably shorter or longer in duration. After a hearing the chancellor out of deference to two prior decisions of this court in Campbell v. Kawananakoa, 31 Haw. 500 and 34 Haw. 333, declined to construe the will on the ground that those decisions are res judicata of the question of construction as set forth in the amended petition. On findings of fact, however, he concluded that the case is an appropriate one for deviation from the will as construed in those prior cases. Accordingly, he entered a decree authorizing the trustees to execute the proposed leases. From the decree granting such authority, the appellants, as life beneficiary and contingent remainderman, respectively, appeal. The other respondents as the remaining beneficiaries and remaindermen joined in the prayer of the trustees and are satisfied with the decree.
The specification of alleged errors on which the appellants rely for a reversal of the decree on appeal presents two main questions of law, the second being dependent on a determination of the first. The first pertains to the two prior decisions of this court in Campbell v. Kawananakoa, supra. It is whether those decisions are res judicata of the *Page 545 question of construction as set forth in the amended petition. If that question be answered in the affirmative then the will need not be further construed and the second question arises. But if it be answered in the negative, the second question would arise only if the will be construed the same as in those prior decisions; otherwise, it would not be judicable. This is evident from the fact that the second question pertains solely to the alternative question of deviation from the will as construed in such decisions and runs to the sufficiency of the evidence to warrant the deviation. It is whether this case is an appropriate one for that deviation. Material to the first question presented on appeal as well as to the second are the chancellor's findings on which he based his decree. Those findings are further material to the two questions set forth in the alternative by the trustees in the amended petition. For a proper understanding of the case, therefore, such findings are made a part of this opinion.
The findings in full are: "(1) That the trustees have in the estate certain marginal lands not suitable for the major agricultural enterprises of the Territory but which are well suited for potential residential, commercial, industrial, piggery and small farm purposes; (2) That the lands in question at present are either non-income producing or yield a relatively low income; (3) That there is a pressing demand for the utilization of these lands but that demand cannot be fulfilled unless the trustees are in a position to grant leases for a term in excess of 51 years; (4) That few prospective tenants are interested in the leasing of said lands unless they can secure adequate financing and this cannot be done without a lease for a term in excess of 51 years; (5) That in order to secure adequate rentals for the lease of said lands either for residential, commercial, industrial, piggery or small farm purposes as the case may be, it is necessary that the trustees *Page 546 execute long term leases so that lessees will have a term of years within which to amortize improvements erected by them on the demised premises and to comply with conditions for the obtaining of financing through the Federal Housing Authority among which is a requirement that a lease of real property will not be approved for Federal Housing Authority financing unless it is for a term in excess of 51 years; (6) That the estate of James Campbell is at a competitive disadvantage with other landowners on the Island of Oahu who are able to and uniformly do grant leases of terms in excess of 51 years; (7) That the will of James Campbell directs that the real estate `shall be particularly and especially preserved intact, and shall be aliened only in the event, and to the extent, that the obvious interests of my Estate shall so demand' and accordingly the trustees are in the dilemma of either holding relatively unproductive land or selling it unless they secure the approval of the Court for long term leases; (8) The conditions that existed at the date of the death of James Campbell have materially changed and the present urban development of Honolulu could not reasonably have been anticipated in 1900; (9) That the will of the testator vests full power of management and discretion in his trustees and provides, among other things, in the Twelfth Article: `It being my purpose herein to provide a safe and certain income and maintenance for my wife, our children and grandchildren, for and during the period of the trusts hereby established, . . . and that the Trustees herein named, and their successors in trust hereunder, shall keep intact my Estate, and administer the same under the name of "The Estate of James Campbell" . . .'; (10) That it is to the best interests and benefit of the beneficiaries of said estate (both income takers and contingent remaindermen including those unborn) that the trustees have and exercise the power to execute leases for such terms that will be *Page 547 valid notwithstanding the prior termination of the trust, [and] based upon the [ten] findings as above set forth it is the determination of the chancellor [11] that the granting of authorization to the trustees to execute leases for a definite term of 52 years, notwithstanding the prior termination of the trust, is necessary in order to make the lands in question properly productive and for the protection of both the income of the income takers and the assets of the remaindermen, and will be a definite and certain benefit to all the beneficiaries, and [12] that such deviation is in accordance with the cardinal objectives of the testator."
On review of the record, this court finds no reason to disturb any of the above findings of fact or any of the conclusions and inferences drawn therefrom by the chancellor aside from his final conclusion as to deviation. He, as the trier of fact, was in a better position to pass upon the credibility of the witnesses and to weigh their oral testimony than is this court. His findings, resting as they do upon the credibility of witnesses and the weight of their oral testimony as well as involving the consideration of opinion evidence, are entitled to great weight. Where, as here, the essential facts underlying those findings, conclusions and inferences are largely undisputed and the overwhelming weight of substantial evidence supports them, this court not only will not set them aside but adopts them as its own.
The doctrine of res judicata, broadly speaking, is but the technical formulation of the "Public policy * * * that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; that matters once tried shall be considered forever settled as between the parties." (Baldwin v. Iowa State Traveling Men's Ass'n,283 U.S. 522, 525, 75 L.Ed. 1244.) Within the framework of a trust, however, the doctrine as an embodiment of public policy does not require a holding *Page 548 that a construction of a will to define the powers of a trustee toward distinct property of the trust once made should never be questioned and corrected, if found to be erroneous, in the future administration of the trust with respect to different property, but must remain unchangeable like the law of the Medes and Persians. If it did so require, the consequence in a long-enduring trust would be that because one piece of trust property had been dealt with at the inception of the trust by an error of construction, all the other pieces thereafter must be likewise dealt with for the entire life of the trust. That consequence would set that trust apart from other trusts under like wills, correctly construed, and be violative of the testator's true intent as well as of judicial duty for, as stated in the early case of Kerlin's Lessee v. Bull, 1 Dall. 175, 1 L.Ed. 88, by Chief Justice McKean, speaking for the Supreme Court of Pennsylvania, "A court is not bound to give judgment, which had been given by a former court, unless they are of the opinion that the first judgment was according to law; for any court may err; and if a judge conceives that a judgment given by a former court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law." But the doctrine does render the effect of a decree in construing a will as to the disposition of a particular piece of trust property final and conclusive between the parties and their privies as to that disposition. An issue of construction with respect to a distinct piece of property is conclusive against relitigation, if, but only if, it has been litigated and its determination necessary to the decision. For example, a prior construction is final and conclusive only as to the particular fund before the court in a former action. (Strout v. Chesley, 125 Me. 171,132 A. 211; Megrue v. Megrue, 247 N.Y.S. 95, 231 App. Div. 245; In re Kellerman's Estate, 242 Pa. 3, 88 A. 865.) To the same effect a prior construction *Page 549 with respect to certain lands is not conclusive as to different lands. (Malone v. Schwing, 101 Ky. 56, 39 S.W. 523; Brock v. Conkwright, 179 Ky. 555, 200 S.W. 962; Corse v. Chapman,153 N.Y. 466, 47 N.E. 812; Hotaling v. Marsh, 132 N.Y. 29,30 N.E. 249; Handy's Estate, 314 Pa. 61, 170 A. 277.) Thus a trustee whom a court of equity has instructed for his guidance and protection as to his course of action under the will with respect to certain property of the trust cannot again be drawn into controversy with the beneficiaries over the meaning of the will in challenge of his authority for taking that course of action with respect to that property. Nor can the beneficiaries be again drawn into controversy thereover with the trustee in justification of his refusal to take that course of action, all those matters having been conclusively determined as between the parties and their privies. But by matters so determined is to be understood the material facts or questions in issue and there admitted or judicially decided. The proper approach to the question of res judicata now before this court, therefore, is to compare the material facts or questions in the two priorCampbell cases with those in the instant Campbell case.
The first Campbell case, 31 Haw. 500, decided in 1930, was "a suit in equity instituted by the trustees * * * for the purposes of securing a construction of the will in so far as the same may be necessary to determine the [precise constructional question] set forth in the bill" in regard to certain lands of the trust. The pleadings clearly limited the issues to those lands and required that the will be construed with respect to them. The question sought to be determined was in substance whether the trustees had the power under the will to make valid leases of such lands for a term of fifty years which would "not [be] subject to termination by reason of the termination of the trust within said fifty (50) year term." In answering that question *Page 550 in the negative, the provisions of the will as to the powers and duties of the trustees to manage the realty of the trust and to produce therefrom "a safe and certain income" were construed to imply "the power to lease lands" but it was the opinion of the court "that no lease can be granted whose term is to extend beyond the termination of the trust [and that] any excess beyond the end of the trust period will be void." That opinion as an authoritative holding, however, is limited to the facts of that case and applies only to the particular lands involved by the question determined. In so far as its broad language might be inferred to be a construction of the will with respect to other lands, the construction to that extent is not germane to that question. No pleading warranted such a construction. Nor was it litigated or necessary to the decision. It, therefore, is mere dictum and does not stand in the way of the trustees in procuring further instructions as to a construction of the will in regard to those other lands whenever the occasion may thereafter arise to seek judicial guidance and protection in the administration of the trust. Consequently, the first Campbell case in construing the will is not res judicata except as to the precise question and issues there decided. (See Berry v. Squires, 95 W. Va. 713,122 S.E. 165.)
The second Campbell case, 34 Haw. 500, decided in 1937, was a suit in equity instituted by the trustees "for the purpose of obtaining a judicial decree validating [two separate leases of the identical lands involved in the first Campbell case] for their full term [of fifty years] even though the trust should terminate prior to the expiration of this term." The ground for validating those leases as sought by the trustees was that of deviation primarily under the provisions of statute empowering a circuit judge at chambers in equity, "if it appears to be for the benefit of the trust estate, [to] direct the trustee or trustees to *Page 551 lease or extend the terms of leases of the real property for such periods as may be deemed advantageous to the estate [and providing that] any lease or extension of lease made under such authority or direction shall continue in force for the full period so authorized notwithstanding the trust shall have terminated." (R.L.H. 1935, § 4712 which is Act 92, S.L.H. 1929 as amended by S.L.H. 1933, c. 194, § 1, since the first Campbell case was decided.) The trustees presumably proceeded on the theory that the rule adopted as case law in the first Campbell case had been reversed by statute. Consistent with that theory, they obtained a decree validating those leases in deviation from the will as construed in that prior case. The deviation as authorized by the decree, however, rested on substantially the same facts as those upon which the will had been construed but reached the opposite result with respect to the identical lands. Accordingly, on appeal, this court in confirming its prior construction not only rejected the theory of the trustees but reversed the subsequent decree. But the authoritative holding in the second Campbell case as that in the first Campbell case is limited to facts which are substantially the same in both of those related cases.
The constructional question as presented by the trustees in the instant Campbell case is comparable in form to the constructional question dealt with in the two prior cases. But it is disparate in substance therefrom, the two questions differing in essential import and subject matter from each other. It was the substance of each question, however, not its mere form, which the parties litigated when the particular question arose under the pleadings as the issue necessary to each decision and with which the doctrine of res judicata is concerned. Consequently, a decision on one is not conclusive of the other as evident from the contrast in the underlying facts and circumstances.
To illustrate this contrast a few of the obvious differences *Page 552 will be noted. The chief distinction between the material facts in the two prior cases and those in the instant one is that not only different lands are involved but lands diverse in character. Because of that distinction each set of lands has been affected differently by various changing conditions and circumstances, which have arisen since the trust was created and which resulted in their becoming subjects of long-term leases at different stages of the trust. The lands in one set are in the main agricultural lands which have developed into highly productive and fully developed pineapple and sugar lands until their yield is higher than average for that character of lands in the Territory. They constitute the major portion of the trust realty and the source of most of the estate's revenue. In contrast the lands in the other set are in the entirety marginal and barren lands which have remained in status quo but by reason of recent urban development have been rendered suitable for productive purposes profitable to the estate. They constitute but a small fraction of the estate and to date have added little to its income. Such contrasts give rise to a host of divergent problems and considerations in administering the trust under the will.
The probability that the long-term leases would expire within the trust period was far stronger in the prior cases than it is in the instant case. Consequently, there was considerably less occasion for extending the leases beyond the probable life of the trust as well as considerably less advantage to the estate in rentals to be gained therefrom in the prior cases than there is in the instant case. Nor did the Federal Housing Authority affect the financing of the prospective lessees in the prior cases as it does in the instant case. The marked difference between what appeared to be a lack of any real need for so extending leases with respect to one set of lands and what is proved to be an urgent need therefor with respect to the other stems not *Page 553 only from the substantial difference in years between the two stages of trust but from the diverse characters of the lands involved, the lands in one set continuing to be highly productive whether the leases were made terminable with the trust or valid for their full term even though it might extend beyond the life of the trust as a remote possibility and those in the other remaining idle or relatively unproductive unless they are validly leased for a definite term of fifty-two years without regard to the strong probability that the trust would terminate within that term. From these differences of consideration, it is understandable that "the elementary principle, laid down in textbooks and decisions, that a leasehold, in the absence of some reason for doing so, may not extend beyond the quantity of estate held by the lessor" lent itself readily as a convenient solution of the then-existing problem in the prior cases and yet affords no solution to the now-existing problem in the instant case. (Inre Hubbell Trust, 135 Ia. 637, 113 N.W. 512.) Nor is it strange that such principle as a mere rule of construction was resorted to in the prior cases to deny the exercise of the implied power to lease in so far as the term might extend beyond the duration of the trust with respect to the lands involved at that stage of trust but would not be resorted to in the instant case wherein the exercise of that power may be reasonable with respect to different lands at a later stage of trust. This is brought into bolder relief by further differences of consideration.
Long-term leases extending beyond the probable duration of the trust were not necessary in the prior cases as an alternative to a sale and hence the power to execute them was not considered to be within the express power to alienate as the leases are and the power to execute them should be considered in the instant case. Other differences of consideration lie in the provisions of lease. The leases in the prior cases provided for no renegotiation of rentals *Page 554 whereas in this case the decree requires that the rentals be subject to renegotiation after the expiration of the first twenty-five year period of the proposed leases and again after the expiration of a forty-year period and further provides that those rentals may be subject by the trustees within their discretion to more frequent intervals for renegotiations. Furthermore, it appeared to be doubtful in the second Campbell case whether it would be ultimately beneficial to the contingent remaindermen at the termination of the trust for them to have the productive lands of the estate as the great bulk of their inheritance incumbered by the unexpired leases at fixed rentals in the sense of not being renegotiable whereas in this case no such doubt appears, the right to enjoy those lands being unrestricted and otherwise idle or relatively unproductive being saved from alienation and at the same time rendered productive and more valuable through unexpired leases, the rentals of which the remaindermen themselves will have enjoyed for a substantial period of the lease as beneficiaries of the trust and may renegotiate after termination of the trust during the balance of the leases as successor lessors. No further comparisons are necessary to underscore the diversity between the subject matters litigated or to demonstrate that no relitigation of the same material facts or questions is involved. Suffice it to say that the first question as to res judicata is answered in the negative. Both sets of parties before this court, therefore, are entitled to have it construe the will in determining the appeal as to whether the trustees have power to execute long-term leases for the particular lands in question.
The will expresses no prohibition whatsoever against leasing lands of the trust or against leasing them for a term beyond the duration of the trust. On the contrary, it is silent on the entire subject of leases. It is only when the will as a whole is construed in relation to its provisions *Page 555 as to the powers and duties of the trustees toward the trust realty that by necessary implication the testator's intention becomes clear as to the power to lease and as to the manner of its exercise.
The will, so construed, makes it incumbent upon the trustees in plain and unambiguous language "to hold, manage, control, preserve, and direct [the trust realty], to collect all rents, issues, profits, income and revenue thereof, * * * to provide [from it] a safe and certain income and maintenance for my wife, our children and grandchildren, for and during the period of the trust hereby established, [to] keep intact my estate * * * the realty thereof [to] be particularly and especially preserved intact [so that it] shall be aliened only in the event, and to the extent that the obvious interests of my estate shall so demand."
The powers to hold, manage, control, preserve and direct the trust realty as conferred upon the trustees by the will are broad in scope and character. They are coupled with imperative duties to keep that realty intact and to produce and collect from it a safe and certain income. The evident purpose of the testator in regard to those powers and duties is that they be exercised for the best interests of the beneficiaries in order that there shall be produced during the entire period of the trust as safe and as certain an income as good husbandry and prudent management reasonably can attain. He patently sought to procure for the cestui que trust the full benefit of income which the trust realty is reasonably capable of producing under the wisdom and guidance of his trustees. Nor does the power to alienate trust realty as conferred by the will operate to conflict therewith. On the contrary, it is a discretionary power to be exercised "only in the event, and to the extent that the obvious interest of my estate shall so demand" which means nothing more than that the *Page 556 power is to be exercised when it becomes clear to the trustees that it would be for the best interests of the beneficiaries to sell rather than to hold for income-producing purposes. Thus every power and duty as conferred and imposed by the will is interrelated with each other and must be reasonably exercised to further the interests of the estate. That such mandate be carried out is the paramount intention of the testator. Supplementing and amplifying that intention as to the persons who are the objects of his bounty and as to when they are entitled to it are the provisions of will with respect to the order of succession for the beneficiaries to receive income and with respect to the duration of the trust which clearly indicates that the testator contemplated a long-enduring trust albeit one of indeterminate life.
In further considering the wide scope of power conferred by the will, it is evident that the testator intended to clothe the trustees with all the power which he possessed and which he might, if living, probably exercise in case of conditions making it advisable from a business standpoint. That power is practically unlimited other than to be within the confines of an exercise which is reasonable in furtherance of the best interests of the estate. Having the express power to sell to the extent that "the obvious interests of my estate shall so demand," the trustees to the same extent plainly have the power to make a lease which is a possessory sale of less than the whole interest. In correlation, the power to alienate as a sale of both title and possession carries with it the power to lease as a sale only of possession, even though the tenancy created thereby may extend beyond the probable duration of the trust. To that broad power of alienation, the legal maxim is applicable that "The greater contains the less," i.e., Omne majus continet in se minus. For example, a power to lease for ninety-nine years has been held to be within the greater *Page 557 power to sell in construing comparable wills which conferred powers not so broad as those conferred by this will. (Marshall'sTrustee v. Marshall, 225 Ky. 168, 7 S.W. [2d] 1062, 61 A.L.R. 1365; Estate of Gray, 196 Wis. 383, 220 N.W. 175.)
The application of the above-stated maxim as a rule of interpretation governs in ascertaining the testator's intention from the whole will, attributing weight to all its language. For instance, that application achieves a result which is consistent not only with the interplay of express powers and duties to hold, preserve and keep the realty intact and to produce and collect from it the required character of income, but under the particular facts of this case with the best interests of the estate which the paramount intention of the testator requires to be served. Nor can those powers be properly and fully exercised and those interests served with respect to the lands in question unless the trustees are empowered to lease them for a definite term extending beyond the probable duration of the trust. The power to lease for such a term thus not only implements express powers and duties and makes them effectual but operates as a reasonable execution of the trust itself in carrying out the paramount intention of the testator. It is evident therefrom as well as from the broad power of alienation that by necessary implication the trustees have the power to so lease. That implied power, however, is subject to the same limitations and requirements as those to which the express powers are subject. To the same extent as they are, it is exercisable so long as the authority of the trustees continues for the full life of the trust and must be exercised reasonably for the best interests of the estate in the light of all the facts and circumstances in any particular case. When so exercised it not only serves those interests but as an alternative to a sale operates more advantageously to the remaindermen in whom title vests at *Page 558 the termination of the trust than would have been the case had title been divested by exercise of the greater power to alienate.
Under similar facts and circumstances, courts have liberally construed like wills as to comparably broad powers of control and management to imply the power to execute long-term leases extending beyond the probable life of the trust and have done so even where the will confers no power to sell. (Russell v.Russell, 109 Conn. 187, 145 A. 648; Montgomery Ward Co. v. Norton's Trustee, 255 Ky. 244, 73 S.W. [2d] 41; Upham v.Plankinton, 152 Wis. 275, 140 N.W. 5. See In re HubbellTrust, 135 Ia. 637, 113 N.W. 512.)
This court recognizes a conflict in the authorities as to general powers of trustees but believes the better rule permits trustees to make leases beyond the periods of their trusts if in so doing they give effect to the scheme and intent of the trustor. The position taken here accords with the statutory rule for extending leases for trust property. (See R.L.H. 1945, § 12573.) Moreover, the soundness of that position both as to the law and the facts of this case could not be better expressed than was done in the analogous case of Lindenberger v. KentuckyTitle Trust Co., 270 Ky. 579, 110 S.W. [2d] 301 at pp. 303, 304, by the following language: "It is true that as a general principle many courts have held that a trustee could not encumber the trust property with a lease extending beyond the termination of the trust; but in every one of them there was nothing in the trust instrument whereby such an authority could be found as possessed by the trustee, and where to uphold it would be in direct conflict with the plainly expressed purpose that it should not be done. But courts — especially in later years — in an effort to carry out the intention and purpose of the creator of the trust, have departed to some extent from that unbendable rule of interpretation, *Page 559 under circumstances and conditions that to deny the authority in the trustee would obstruct and defeat the purposes of the trust. Here we have the situation that the trust property, though vastly valuable, is yielding in its present condition but little more income than is necessary to pay taxes. To carry out the proposed leasing scheme would convert it into paying trust property, and in no conceivable way or manner would it or could it imperil in the least the value of the trust property, either now or hereafter, or conflict with any of the trust provisions. On the contrary, the proposed improvement to be acquired through the operation of the proposed lease, according to all rules of economics, will greatly enhance the interest of the equitable owners. In such circumstances courts have held that the evident purpose of the creator of the trust should prevail; and that under facts like those prevailing here the language of the trust instrument should be liberally interpreted so as to empower and authorize the trustee to lease the trust property for a reasonable term, notwithstanding it might extend beyond the period of the trust."
From its four corners, the will in this case clearly so empowers the trustees. In addition, it provides the key as to the testator's intention for the disposition of the particular lands involved within the power to alienate them. That key is to be found in the event that and to the extent which the obvious interests of the estate require the exercise of that drastic power or of those less drastic powers carried with it, i.e., ones to lease for terms of varying character and length. The trustees thus have a wide choice of action but must be guided by the dictates of those interests as the flexible standard or criterion set up by the testator for the exercise of those powers. In administering the trust they are required to ask themselves the question whether such interests demand that the particular lands *Page 560 in this case be allowed to remain idle or relatively unproductive, be leased for a very short term, be leased for an uncertain one terminating with the trust, be leased for a definite term of fifty-two years, or be sold? To state that question in the light of the facts is to answer it. This is true because it is patent therefrom that out of all possible alternatives for the disposition of the property the proposed leases for the definite term of fifty-two years are the most advantageous to the estate and the only ones which further its best interests. Corroborative thereof is the fact that the execution of those leases constitutes a reasonable exercise of the implied power to lease, the term being not only a reasonable one but the one best adapted to produce income for the benefit of all the beneficiaries as well as being in accord with local custom for the leasing of lands of like character. In brief, the obvious interests of the estate within the meaning of the will demand that such a disposition be made as an imperative duty. Thus is revealed the true intention of the testator as applied to the facts of this case. Accordingly, the will is so construed to effectuate that intention.
In answering the constructional question before it in the affirmative, as it does, this court points out that its construction of the will with respect to the lands involved by that question does not extend to an increase or decrease in the powers and duties which the will confers upon the trustees but merely to a clarification of them. No further advice is sought by the trustees and their alternative question of deviation does not arise. Nor is it judicable. The chancellor therefore should have declined to answer it rather than the question of construction. The error, however, is a harmless one, the result of the decree being correct in authorizing execution of the proposed leases which under all the facts and circumstances of this case constitutes a reasonable exercise of the implied power to lease. *Page 561
Decree affirmed.