While realizing that dissenting opinions are futile and usually of little value, I cannot join with the majority of this court in their holding that the trustees of the Campbell Estate can underterms of the will make a binding lease for a period longer than the duration of the trust.
Not only has this court twice held that the will of the testator, James Campbell, did not empower the trustees of their own volition to execute leases that would be binding beyond the termination of the trust, but the trustees themselves have on at least one occasion formally admitted that the will of the testator did not empower them to execute such leases; and apparently at the time of the filing of the original petition they were of the same opinion as the original bill was a petition to deviate from the terms of the trust created under the will and only by the amended petition did they suggest that the trustees might have power under the terms of the will to execute leases to extend beyond the duration of the trust. "It is conceded bythe trustees that the will of the testator did not empower themof their own volition to execute leases that would be bindingbeyond the termination of the trust. In *Page 562 other words, that the only means by which this end could be accomplished would be by competent judicial action." (Campbell v. Kawananakoa, 34 Haw. 333, 334.) (Emphasis added.)
This court stated in Campbell v. Kawananakoa, supra, on page 335: "`The testator has expressly declared in his will that he wishes all the authority of his trustees, and all their dominion over the property, to cease at the time that he has chosen for the termination of the trust.'" Quoting from the first case of Campbell v. Kawananakoa, 31 Haw. 500, this court stated in the latter case of Campbell v. Kawananakoa, 34 Haw. 333, at pages 337, 338, the following: "`This is an unambiguousstatement of the testator's intention and desire that theauthority of his trustees shall cease at the time specified byhim. * * * it would be contrary to the intention of the testator for them to execute prior to the termination of the trust a lease to extend beyond the period of the trust.'" (Emphasis added.)
And at page 341 this court said: "There is another reason why we think the decree of the circuit judge should not be affirmed. It has been so often judicially declared that the will of the testator is the law of the case that it has become a legal maxim. It is true that cases have arisen and may again arise in which courts of equity dealing with trusts have found it necessary in the exercise of their inherent powers to deviate from the strict letter of the trust instrument in order to effectuate the cardinal purpose of the trustor. * * * There is nothing in the instant case that requires the application of this rule. The validation of the leases beyond the duration of the trust is neither necessary to the preservation of the trust res nor to the protection or conservation of the rights of beneficiaries of the trust as they are vested by the provisions of the trust instrument." *Page 563
In summarizing the argument that if a lease were made extending beyond the term of the trust this would not prevent the passing of the title of the trust res to the remaindermen upon the termination of the trust, the court said at page 344: "Conceding this to be true the fact nevertheless remains that the ownership of the trust res and the right of the remaindermen to dealwith it according to their own wishes when they become entitledto it would not be an unqualified right as the trustor intendedit should be but a right qualified by and subject to theprovisions of the leases." (Emphasis added.)
The chancellor properly held that under the two previous decisions of this court the trustees were not granted the powerunder the will of James Campbell to grant leases for a term that would or might extend beyond the duration of the trust, and that the sole issue was whether this was an appropriate case for the exercise of the power of the chancellor to permit a deviation from the terms of the trust. After considering the testimony, the chancellor held that this was an appropriate case to permit deviation from the strict terms of the trust.
If the Hawaiian statute as now appears in section 12573, Revised Laws of Hawaii 1945 (which states in substance that any circuit judge sitting at chambers in equity may if it appears for the benefit of the trust estate authorize the trustees to extend the terms of leases of real property for such periods as may be deemed advantageous to the estate, and that any lease or extension of the lease made under such authority shall continue in force for the period so authorized notwithstanding the trust shall have terminated), were applicable, the decision of the chancellor might be sustained on the evidence adduced. However, this court in Campbell v. Kawananakoa, 34 Haw. 333, held that: "When, under the terms of a testamentary trust it is the clearly expressed intent of the testator that upon *Page 564 the termination of the trust the corpus of the estate shall go to the remaindermen, to be dealt with according to their wishes, the will of the testator is the law of the case having the authority and finality of a constitutional provision and in the absence of existing or threatened danger to the corpus of the estate or to the interests of beneficiaries it is beyond legislative power, by the enactment of a statute subsequent to the death of the testator and subsequent to the vesting of the rights of remaindermen, to authorize a court in equity to sanction a deviation from the trust instrument the effect of which would be to hinder or embarrass the remaindermen in the exercise of their rights."
Thus, the decision held that the statute had no application to trusts created prior to the passage of the Act.
Therefore, if in the present case authority to make a lease binding beyond the termination of the trust is permissible, it must be under the circumstances such as equity would permit without the aid of this statute. Obviously, from the testimony these conditions are not met. The authorities are in substantial agreement, and this court has ruled a number of times, that a deviation will be permitted only (1) where necessary to preserve the corpus of the estate and (2) to save the beneficiaries from want or poverty, and will not be permitted merely to produce a greater benefit for the beneficiaries. (Campbell v.Kawananakoa, 31 Haw. 500; 54 Am. Jur., Trusts, § 284, p. 225; 54 Am. Jur., Trusts, § 285, pp. 226, 227; Hawaiian Trust etals. v. Gonser et als., 40 Haw. 245; Johns v. Johns,172 Ill. 472; 7 Ill. L. Rev. 429; 38 Yale L.J. 801; 23 Calif. L. Rev. 86; 23 Calif. L. Rev. 91; Reedy v. Johnson's Estate,200 Miss. 205, 26 So. [2d] 685; In Re Hubbell Trust, 135 Iowa 637, 113 N.W. 512.)
Although the majority opinion filed herein apparently is based on the theory that under the will the trustees of *Page 565 their own volition have power to execute leases which would be binding beyond the terms of the trust (in such case no authorization by the court would be necessary though instructions might be sought as a matter of precaution), yet as most of the decisions cited in the majority opinion deal with deviation rather than with express or implied power in the trust instrument itself, and — as correctly pointed out by the chancellor below, deviation is the only possible theory upon which such leases could be authorized without absolutely disregarding the prior decisions of this court — I shall discuss the cases cited in the majority opinion as well as several additional.
In Campbell v. Kawananakoa, 34 Haw. 333, 342, the court in denying the right of the trustees to make a lease valid beyond the termination of the trust stated: "The validation of the leases beyond the duration of the trust is neither necessary to the preservation of the trust res nor to the protection or conservation of the rights of beneficiaries of the trust as they are vested by the provisions of the trust instrument."
Again, in the case of Hawaiian Trust et als. v. Gonser etals., 40 Haw. 245, the syllabus is as follows: "A court of chancery may authorize a trustee to depart from the terms of the trust but such departure is justified only upon the occurrence of emergencies or unusual circumstances not anticipated by the settlor, in order to carry out his ultimate purpose, and to preserve, or to prevent loss or destruction of, the trust estate." In this same case at page 253 the following is quoted from 3 Bogert, Trusts and Trustees, part 2, section 742, page 571: "Something in the nature of an emergency is required to move the court to authorize a deviation from the settlor's plan of administration * * *." The case of Weakley v. Barrow, 192 S.W. 927, 137 Tenn. 244, cited in this Gonser case, stated: "The *Page 566 exercise of the power depends, not on expediency, but on exigency."
"The mere fact that a sale of the land might benefit the beneficiaries more than the compliance with the terms of the trust does not furnish a reason for a decree ordering the title of the land to be disposed of in opposition to the manifest wish of the donor. The duty of the court in dealing with such a trust is to observe and carry out the purposes and plans of the donor, unless the preservation of the subject-matter of the trust, or some other like necessity, demands interference with his will and intention." (Johns v. Johns, 172 Ill. 472, 485, 50 N.E. 337, 342.)
In Re Hubbell Trust, 135 Iowa 637, the decision is that "Trustees holding title to property under a will with power to contract simply with reference to its use, and who are required by the will to turn over the property to the parties entitled thereto on the expiration of the trust, have no authority to execute a lease of the same for a series of years likely to extend beyond the trust period, except upon a showing that such is reasonably necessary to effectuate the purposes of the trust." It held that only upon a showing of such reasonable necessity, when not given such power by the instrument creating the trust, will the trustees be authorized to bind the estate so as to effectually deprive those ultimately entitled thereto of the property itself. This case further points out that leases should not be made unless they are reasonably likely to expire at about the time of the termination of the trust unless in case of necessity; that courts are more concerned in ascertaining the obligations of the trust and seeing that these are fulfilled by the trustees than in speculating on future contingencies or in increasing the income of the cestuis que trustent. Reviewing the English decisions, it finds "the law of England may be regarded as settled that trustees without express authority to lease may not do so for *Page 567 terms which may or are likely to extend beyond the trust period."
With two exceptions, all of the cases cited in the majority opinion relative to the power of the trustees to grant leases which may extend beyond the probable duration of the trust or to deviate from the provisions of the will were cited in the briefs in the former cases of Campbell v. Kawananakoa, supra, and their rulings so far as contrary to our own decisions were discarded.
To justify trustees making leases to extend beyond the duration of the trust or other deviation, our decisions have uniformly followed the majority rule that there must exist a necessity or the occurrence of emergencies or unusual circumstances not anticipated by the settlor threatening loss or destruction of the trust estate, or a necessity to save the beneficiaries from want or poverty.
The first case cited in the majority opinion that was not considered in the former Campbell v. Kawananakoa cases wasNashville Trust Co. v. Cain-Sloan Co., 29 Tenn. App. 39,193 S.W.2d 103, which merely decided that the Tennessee statute permitted sale or lease of property belonging to minors. In that case one of the trusts expressly permitted sales and in the other there was no limitation upon sales or encumbrances.
The second case is Kerlin's Lessee v. Bull et al., 1 Dallas 175 (U.S.), from which (apparently attempting to justify the overruling of the two former decisions of this court) the following is quoted in the majority opinion: "A court is not bound to give the like judgment, which had been given by a former court, unless they are of 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. Acting otherwise would have this consequence; *Page 568 because one man has been wronged by a judicial determination, therefore every man, having a like cause, ought to be wronged also." However, it is interesting to note that instead of overruling the former decisions as the majority opinion contends, the court decided: "When there has been a solemn determination before two judges of the supreme court, after debate, and an acquiescence under it, there ought always to be great consideration paid to it, that the law may be certain. Upon the best information we can obtain from the gentlemen of the law in different parts of the state, we find that estates have been distributed agreeable to this determination. And as this construction of the act has been so long accepted and received as a rule of property, though some may not be satisfied in their private judgment, were the matter to be newly resolved, it is but reasonable, we should acquiesce and determine the same way, in so doubtful a case, to prevent greater mischiefs which may arise by shaking a number of estates, and from the uncertainty of the law." Apparently, according to the majority opinion in the present case no such rule should be followed but the former cases should be overruled however tenuous the reasoning by which this is accomplished.
In the case of Ruggles v. Tyson, 79 N.W. 766, 768 (Wis.), in discussing the grounds for deviation, it is said: "Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstances not foreseen by him and provided for, the courts may intervene, but only for the purpose of, and so far as necessary to, preserve the property."
An article in 23 California Law Review 86 states that the courts respect and attempt to give effect to the exact terms of a trust instrument on the principle that an owner of property has the right, within certain limits, to prescribe *Page 569 the mode of its use and management both during his life and after his death.
"Where there is no real emergency and the object of the applicant is merely to benefit the trust estate or to provide a better income for the present cestuis, the income from thepresent res being sufficient to satisfy the trustor's purpose,the courts almost uniformly refuse permission, regardless of anychange of circumstances." (23 Calif. Law Rev. 91.) (Emphasis added.) Similar comments are to be found in 28 California Law Review 785.
This so-called marginal land for which the trustees seek authority to lease for a period of 52 years consists of some 3,650 acres, comprising about 5% of the total area owned by the estate, and is at present rented at an annual rental of from $2 to $20 per acre plus taxes.
Without discussing the testimony as to what it would cost the trustees or their tenants to construct piggeries, the cost of making water and roads available to such lands, whether the demand for such lands is as great today as it was two years ago, whether government loans could be obtained on any holdings less than fee simple, whether there is a demand as testified to by some of the witnesses for leases of lands for shorter terms than the 52 years requested, the lack of evidence as to the similarity of the Campbell Estate lands to the lands of other estates which have been subdivided, and other testimony to show the "legal necessity" or the lack thereof justifying the granting of a lease extending beyond the term of the trust, the material evidence so far as the trustees are concerned may be summarized by the statement of Trustee Coke that "* * * if we are going to givethem [the lessees] a short lease * * * we are going to have todeal on a very much less margin of profit than if we could make along term lease * * *." (Emphasis added.)
The question is then reduced to a legal conclusion as *Page 570 to whether the trustees should be authorized to grant a lease extending beyond the termination of the trust because in their opinion there would be more income received from such lease of the 5% land holdings. Assuming that more income would be received by such lease, should that justify it?
The trustor in his will states two purposes: (1) to provide a safe and certain income and maintenance for his wife, his children and his grandchildren for the period of the trust and (2) that the trustees shall keep intact his estate.
The testator's widow and two of his four children are now deceased, leaving two children and ten income-taking issue of his deceased children.
The evidence shows that the distributable annual income is in the neighborhood of $900,000 to $1,000,000. There was no evidence — in fact, no contention has been made — that a lease beyond the probable duration of the trust is necessary to preserve the corpus of the estate, nor is there the slightest evidence that there is any "emergency" that would render such lease necessary to save from want or poverty the beneficiaries of the trust. In other words, there is no evidence that the income from the res is not sufficient to serve the trustor's purpose.
Obviously, the chancellor and the trustees assumed that such lease was justified if it would provide an enhancement of the income to the beneficiaries. As pointed out, this is not the law (except possibly in the State of Illinois) and was rejected in the Territory by former decisions both of this court and of the circuit courts on numerous occasions.
The age of the youngest life tenant is 60 years, with a life expectancy of slightly more than 14 years. Under such circumstances, a lease of 52 years would extend the lease *Page 571 approximately 18 years beyond the termination of the trust.
The majority opinion, after stating that it recognizes a conflict in the authorities as to the general powers of trustees to extend leases beyond the probable duration of the trust, states in substance that the better rule is that the trustees have such power when it is to the "obvious interests" of the estate; that "The position taken here accords with the statutory rule for extending leases for trust property" (citing R.L.H. 1945, § 12573, which as shown in Campbell v. Kawananakoa,34 Haw. 333, supra, has no application to trusts created prior to its enactment), and that "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. Kentucky Title Trust Co., 270 Ky. 579, 110 S.W.2d 301, at pp. 303, 304 * * *."
The Lindenberger case states: "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."
On the other hand, the Campbell Estate after paying all expenses, including taxes and substantial trustees' commissions, has approximately $1,000,000 per annum to distribute among 12 beneficiaries. (Further, the rent from the so-called marginal lands in the Campbell Estate is net and above taxes.) Quite a similarity to the Kentucky case!
This court in Campbell v. Kawananakoa, 31 Haw. 500, rejected the rule of "obvious interest" as applied in the majority opinion. This decision quoted from 38 Yale Law Journal 801 in its discussion of the power of trustees to execute long-term leases upon approval by a court of equity. In quoting from the Yale Law Journal it said "`there must be shown to exist an exigency rendering an execution of a long term lease reasonably necessary for *Page 572 the preservation of the property, or for effectuating the intention of the trustor with regard to the purposes of the trust.'" Then, the further statement: "`There seems to be a trend to determine that the lease is "reasonably necessary" within the rule, when it is highly beneficial to all the parties and advantageous to the income of the estate.' 38 Yale Law Journal, 801-802." Our court said: "This tendency, if it is such, should not be too readily yielded to. The intent of the testator should be the ultimate guide in this class of questions of construction as well as in other classes."
The case of Denegre v. Walker, 214 Ill. 113, 73 N.E. 409, the leading and practically the only authority authorizing the long-term lease on the ground of business expediency (which rule the majority opinion adopted) has been severely criticised and thoroughly discredited. In Denegre v. Walker the court authorized a 99-year lease when the trust was to be terminated in eight months! In 7 Illinois Law Review 429 wherein this case was reviewed it is said: "In Denegre v. Walker the court seems to have gone very far in giving power to the trustees to make a long-term lease. It looks as if the court regarded its action as justified upon mere grounds of business expediency. It is submitted that the case is one which the profession should be careful about leaning heavily upon."
Again, in 16 American Law Reports attention was called to the fact that Denegre v. Walker was criticised in Re HubbellTrust, 135 Iowa 637, supra, in which the court pointed out that the Denegre case had gone further than any court hadpreviously gone and ignored all previous grounds for grantinglong-term leases.
At the time the trustees sought approval of the proposed leases of 50 years to Ewa and Oahu plantations, the leases would have exceeded the life expectancy of the youngest life beneficiary by eight years. In the present *Page 573 case the majority opinion, in distinguishing the proposed Ewa and Oahu leases from the instant case, states that there was less reason for approving the former leases because the probability was far stronger then that these long-term leases would expire within the trust period than in the instant case! (The probability in the former two cases was that the leases would extend eight years beyond the end of the trust, in the present case 18 years.) According to this reasoning, the longer the lease extends beyond the life of the trust, the greater the desirability of such lease. This, with the statement in the majority opinion that "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" are used asreasons to interpret the will of James Campbell to the effect that such an extension of the leases beyond the terms of the trust was the testator's intent (implied?)!
Again, the statement that where the duration of the trust is indeterminate and the trustees are clothed with powers of management with duties to produce an income for the period of the trust from trust realty, the trustees by necessary implication have the implied power to lease for a definite term extending beyond the probable duration of the trust when reasonably exercised in furtherance of the trust as required by the "obvious interests" of the trust estate is, as previously pointed out, about as far from the law relative to long-term leases as one can get. This is truly a decision wherein the writer "cast[s] all rules aside * * * to fish for the testator's intent without a line."
The first rule "cast aside" by the majority opinion is that the intentions of the testator are to be collected from his words. (See analysis of words in Campbell v. Kawananakoa, 31 Haw. 500, and Campbell v. Kawananakoa, 34 Haw. 333, 342, quoting from Smith v. Bell, 6 Pet. 68 [U.S.], and 2 Blackstone Com. 499, and citing more than *Page 574 a dozen Hawaiian cases beginning with Harris v. Judd, 3 Haw. 421, and ending with the Estate of Campbell, 33 Haw. 799.)
Another elementary rule of trust law "cast aside" by the majority opinion is that without express authority trustees may not lease for terms which are likely to extend beyond the trust period. In fact, even the beneficial owner of a life estate or for a period of years or for the life of another plus a period of years may not bind the property beyond that period. As stated in the Matter of McCaffrey, 50 Hun. 371, 374, 3 N.Y. Supp. 96, "it would seem strange that one who holds an estate in trust for the life of another should have a power over the remainder, which would not have belonged to him if he had held the estate absolutely for life and not in trust." Thus, the only occasion that will give such power, in the absence of authority in the instrument itself is, as pointed out by scores of cases, a finding of necessity either to preserve the corpus of the estate or to save the beneficiaries from want, and not merely to produce a greater benefit for the beneficiaries. (See cases citedsupra.)
The will of the testator was carefully drawn and beyond any question the scrivener knew the elementary principle of law that trustees had no power to lease beyond the termination of the trust (except in emergencies as heretofore discussed). Had the testator desired his trustees to have such powers he would have expressly given them power to lease beyond the termination of the trust. It is true that the term of the trust is indefinite, but upon the death of his last child it becomes definite, namely 20 years thereafter. This period after the death of the last child gives the trustees ample time to provide that the property be delivered free and clear from all encumbrances as this court has in two decisions stated was the obvious "intent of the testator." Instead of specifically granting *Page 575 such power or giving such power by implication, the testator does just the contrary for, as stated in Campbell v. Kawananakoa,supra, "The testator has expressly declared in his will that he wishes all the authority of his trustees, and all their dominion over the property, to cease at the time that he has chosen for the termination of the trust"; again, "This is an unambiguous statement of the testator's intention and desire that the authority of his trustees shall cease at the time specified by him"; and also this court has further stated that should the leases extend beyond the termination of the trust "the right of the remaindermen to deal with it according to their own wishes when they become entitled to it would not be an unqualified rightas the trustor intended it should be but a right qualified byand subject to the provisions of the leases." (Emphasis added.)
This court in twice interpreting the will of James Campbell did not say that "he [the testator] wishes all the authority of his trustees, and all their dominion over the property, to cease at the time that he has chosen for the termination of the trust" be applied to highly productive land only and not to so-called marginal land; nor did this court say that the trustor intended the right of the remaindermen should not be "qualified by and subject to the provisions of the leases" over productive land and not over unproductive land. Nor did it say "that the right of the remaindermen to the complete ownership of and dominion over the corpus of the estate, upon the termination of the trust, having, by the death of the testator and the birth of members of the designated class of remaindermen, ripened into a vested right, it was beyond the power of the legislature in the instant case to authorize the equity court to place a burden or restriction upon the exercise of this right" applied to productive property only and not to marginal lands. *Page 576
The testator's will in no way implied that he had a different intent as to section A or section B, but the whole res should be transferred to the remaindermen free of encumbrances at the end of the 20-year period following the death of his daughter last surviving. The language is clear and equally applicable to all property coming under its terms.
It is a reasonable assumption that the trustor, a man of great wealth and extensive business experience, realized that in handling a large estate consisting of real property placed in trust for an indefinite term and over a long period of time it would be practically impossible to require the contract for the use of every parcel of land to be so timed that it would end at the same moment as every other. This, as well as the fact that all grandchildren then surviving would be of age, therefore might well account for the 20-year period following the death of the last survivor of his daughters before the final distribution of the estate. At that period the termination of the trust would be certain and the trustees would have ample time to so arrange that all property would be turned over to the ultimate remaindermen free from encumbrances, as the testator desired, when the authority of the trustees ceased.
Logically the term of a lease is necessarily limited by the quantity of the estate. Thus, one with an estate for life cannot make a lease binding beyond his life, and one with an estate for years cannot make a lease extending beyond that term. This proposition is elementary as to beneficial ownership; however, if one has a title as trustee it is an extraordinary proceeding to permit such trustee by his own act for all practical purposes to enlarge the quantity of the estate held by him by executing a lease extending beyond the term of the trust ownership. Thus, there must be an extraordinary situation threatening the very existence of the trust, or at least the testator's intention *Page 577 to provide a living income for his beneficiaries, before the courts should approve such act.
It has been the unquestioned law of Hawaii for at least two decades that trustees to manage property cannot (in the absence of an extraordinary situation as above mentioned), without express authority in the trust instrument, lease the trust property for terms which are likely to extend beyond the trust period. (Campbell v. Kawananakoa, 31 Haw. 500, and Campbell v. Kawananakoa, 34 Haw. 333, supra.) This is the law in England and in all of the States except possibly Illinois. "In none save the Illinois decisions have the terms [of a lease] been such as were likely to extend any considerable time beyond the trust period. That the power to lease is thus limited seems to be laid down in the text-books." (In Re Hubbell Trust, supra, quoting from and citing Perry on Trusts; 2 Beach on Trusts Trustees; McAdams, Landlord Tenant; James on Landlord Tenant; Hill on Trustees; Kerr on Real Property.)
The opinion of the majority by a tenuous and stilted reasoning and in disregard of the express language of the will overrules the unquestioned law of Hawaii for more than two decades and substitutes the judgment of the trustees for the will of the testator. It sets forth a dangerous doctrine and is a complete repudiation of the doctrine that "`The rights of an owner of property to control its use and management * * * after his death * * * are among the most sacred, and entitled to the most careful protection at the hands of courts, without scrutiny as to the quality of his reasons in making such choice. * * *'" (Campbell v. Kawananakoa, 34 Haw. 333, 347, quoting from Upham v.Plankinton, 152 Wis. 275.)
Admitting that the trust estate may gain more income by such substitution (although the judgment of trustees is not always infallible in such matters) there is no longer *Page 578 any assurance that when a testator leaves property to be held in trust for life with remainder over, such remaindermen will ever receive such property free of encumbrances as the trustor intended. If a lease may be authorized for 52 years, there is no reason why it should not be for 100 years. Even in the present case it is highly improbable that the remaindermen, grandchildren of the testator, will ever receive the trust property except as subject to long-term leases. Further, some of the remaindermen may prefer to receive this property unencumbered by leases for piggeries that may possibly extend for a 20-year or a 25-year period after they are entitled to it.
In conclusion, to summarize and repeat: (1) It is well settled that trustees to manage property cannot in the absence of authority in the trust instrument lease the trust property for terms which are likely to extend beyond the trust period; (2) as twice decided by this court, the will of James Campbell gives no such authority but on the contrary expressly contains "an unambiguous statement of the testator's intention and desire that the authority of his trustees shall cease at the time specified by him" and that the remaindermen have an unqualified right to the property at that time "as the trustor intended" and not "a right qualified by and subject to the provisions of the leases"; (3) section 12573, Revised Laws of Hawaii 1945, referred tosupra, is unconstitutional so far as it attempts to authorize a court in equity to sanction a deviation from the terms of a trust in effect prior to the enactment of such section the result of which would be to hinder or embarrass the remaindermen in the exercise of their rights and the Act does not permit the trustees of the Campbell Estate to make a lease which may extend beyond the probable duration of the trust merely because such lease would be advantageous to the trust estate; (4) the evidence is not sufficient to show that a lease probably extending beyond *Page 579 the duration of the trust is necessary to preserve the corpus of the estate or to save the beneficiaries from want or poverty, and the same will not be permitted merely to produce a greater benefit for the beneficiaries; the evidence merely shows "an expediency and not an exigency."
The case should be reversed and the trustees instructed that they may make reasonable leases of the property for a term not likely to extend beyond the duration of the trust.