WILLS, TRUSTS AND ESTATES

Signed writing executed in the presence of two witnesses, listing author's assets and giving instructions for their disposition after author's death was evidence of testamentary intent and met with statutory criteria for enforcement of a will. A.S.C.A. § 40.0102. Lokan v. Lokan, 6 A.S.R.2d 44.

Widow who signed document conveying house belonging to her late husband had no power to convey the interest of the surviving children of the deceased. Gi v. Temu, 11 A.S.R.2d 137.

Statutory requirement that testator's signature must be witnessed is not satisfied when the "witness" has no idea whether the signature appearing on the will is that of the testator or not. A.S.C.A. § 40.0102. In re Estate of Poiali`i, 15 A.S.R.2d 111.

Proof of testator's signature can be obtained either by the witness's observation of the testator in the act of signing or by the testator's later acknowledgment of the signature; the bare presence of the testator when the witnesses sign is insufficient. In re Estate of Poiali`i, 15 A.S.R.2d 111.

Provisions of Rule 11 of the Territorial Court Rules of Probate Procedure, which allow proof of a will by other evidence when witnesses are unavailable, requires a showing that the witnesses could not have been located by the exercise of due diligence. In re Estate of Poiali`i, 15 A.S.R.2d 111.

Although the common law recognized holographic wills, when legislation provides for the kind of wills, which may be executed, and the manner of execution, a will failing to meet those statutory requirements is not valid. Estate of Jennings, 24 A.S.R.2d 3.

The testator's signature on any will, except one involving personalty which has a total value of not more than $300, must be witnessed. A.S.C.A. § 40.0102. Estate of Jennings, 24 A.S.R.2d 3.

§ 2 Interpretation

In construing a trust instrument's terms, a court seeks to ascertain and give effect to the settlor's intention by taking into account the document's subject matter, scheme, and plan, as well as the relationship of the parties; favor effectiveness of the instrument and validity of the trust; favor beneficiaries rather than settlors; and give effect to the whole instrument by reconciling repugnancies and avoiding surplusage. Beaver v. Craven, 19 A.S.R.2d 14.

Interpreting a trust instrument to find the settlor's intention is a question of law. Beaver v. Craven, 19 A.S.R.2d 14.

No language in a trust instrument is treated as surplusage as long as any other course is reasonably possible. Beaver v. Craven, 19 A.S.R.2d 14.

§ 3 Procedural Issues

Court would allow executor of decedent's estate to be joined as defendant in action concerning title to land even though period for filing claims against estate in separate probate action had expired; judge in probate action, however, would have discretion to distribute decedent's property to heirs without regard to pendency of the land case, and heirs could then be substituted for executor as defendants in land case. Roberts v. Sesepasara, 8 A.S.R.2d 43.

Where trustees filed a pleading styled as a petition to a nonexistent "probate division" of the High Court for advice and instructions, the Court denied a motion to dismiss for failure to state a claim by the surviving settlor of the trust, since the trustees did not merely seek an advisory opinion but stated a claim for declaratory relief. A.S.C.A. § 43.1101 et seq. In re Beaver Family Trust, 17 A.S.R.2d 9.

Although a claim under the survival statute was not plead with specificity, the liberal rules of pleading allows the claim when the cause of action was sufficiently noticed. Utu v. American Samoa Government, 20 A.S.R.2d 53.

Potential claimants to an estate's proceeds were to be joined as necessary parties when the complete relief granted by the court would affect the property rights of persons who were not presently parties to the action. T.C.R.C.P. 19. Jennings v. Jennings, 22 A.S.R.2d 10.

In the absence of statutory authorization for privity exceptions in probate proceedings, any claims with respect to the land, lease, and improvements must be determined in an independent action. Estate of Jennings, 24 A.S.R.2d 3.

§ 4 Modification or Change

§4(1) In General

Assertion by devisee that devisor made secret dying, oral bequest of property to devisee will be looked upon with strong suspicion unless good reason can be shown for secret dispotition. Sapela v. Mageo, 1 A.S.R. 143.

Changes to a will that cause a new and distinct testamentary disposition must be attested in order to be valid. Lokan v. Lokan, 6 A.S.R.2d 44.

Attempted revisions that were not signed, dated, or attested would not invalidate will when it appeared that the revision attempted was merely an update of the property inventory that followed a general devise. Lokan v. Lokan, 6 A.S.R.2d 44.

§4(2) Ademption

Ordinarily when a thing devised passes out of the estate before the testator's death it "adeems," leaving the devisee with no right to receive it or the equivalent value in money or other property. Lokan v. Lokan, 6 A.S.R.2d 44.

When a thing devised has, before the death of the testator, changed in name or in form only, there is no ademption and the devisee is entitled to the thing that has replaced the thing devised. Lokan v. Lokan, 6 A.S.R.2d 44.

§4(3) Dependent Relative Revocation

Under the doctrine of "dependent relative revocation," when a testator attempts to change a provision in his will and the attempted change is deemed invalid, the original provision remains in full force unless it appears that the testator would have preferred a simple deletion of this provision to its unmodified enforcement. Lokan v. Lokan, 6 A.S.R.2d 44.

§ 5 Inheritance

§5(1) In General

Where court has held that one child is not entitled to inheritance property from parent, it could not consistently hold that another child with identical interest is entitled to inheritance. Taliutafa v. Toaga, 2 A.S.R. 218.

Samoan cannot inherit land from ancestor who could not hold title to land under law. Willis v. Willis, 2 A.S.R. 276.

Since at time of conveyance person could not inherit land unless he was at least three-fourths Samoan blood, it was necessary for conveyance benefiting children of non-native father be in form of trust for their benefit. Fruean v. Mageo, 2 A.S.R. 591.

No person can be heir until death of ancestor, and word “heir” cannot be applied to one whose ancestor is still living. Yuhashi v. Lopeti, 3 A.S.R. 322.

In view of prohibition against alienation of native lands, greatest estate that man could lawfully convey to grandson whose father was non-native was estate terminating upon grandson’s death. Atufili v. Timoteo, 3 A.S.R. 395.

“Issue of such marriage” in regulation prohibiting alienation of native lands refers only to children and not lineal descendants. Atufili v. Timoteo, 3 A.S.R. 395.

Upon death of record owner of land his children inherit land as co-owners. Ofoia v. Pritchard, 4 A.S.R. 326.

Person who inherits land rights, subject to rights of other co-owners, may occupy and make use of land. Ofoia v. Pritchard, 4 A.S.R. 326.

Where title to land is conveyed to claimant and her children and claimant dies, leaving seven children, land became joint property of seven children in fee simple. Soliai v. Apelu, 4 A.S.R. 349.

Process of defining the term "next of kin" within the meaning of inheritance statute can be restated as an inquiry into whether the legislature intended to adopt the "civil law rule" according to which kinship is determined by a series of steps up and down the genealogical ladder and a person is one step away from his parents and two steps away from his siblings, or the competing "common law rule" according to which a person is related to both his siblings and his parents in the first degree. A.S.C.A. § 40.0201. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

Although the common law equated illegitimacy with disinheritance and the legitimation of offspring is essentially a statutory development, disinheritance constitutes impermissible discrimination when paternity or maternity is a genuinely established fact. Estate of Fuimaono, 21 A.S.R.2d 121.

§5(2) Intestate Succession

Where decedent dies intestate, children inherit as tenants in common. Bank of American Samoa v. Brown, 2 A.S.R. 365.

Where man dies intestate without wife or children, his undivided interest in land passes to his brother. Foster v. Olotoa, 3 A.S.R. 76.

Under inheritance law, property shall finally descend forever, and lineal descendants of any person shall stand in same place as person himself would have done had he not died. Yuhashi v. Lopeti, 3 A.S.R. 322.

On death of owner of property intestate, descent of property by operation of law to several heirs creates tenancy in common. Yuhashi v. Lopeti, 3 A.S.R. 322.

§5(3) Adopted Children

Fear of matai that adopted children, who are members of family, will be deprived of family lands is unwarranted since they have redress to Attorney General and Secretary of Native Affairs. Leasiolagi v. Fao, 2 A.S.R. 451.

When parents perform their parental duties towards those acknowledged as their children, and those children perform their filial obligations in return, a de facto right of inheritance should be recognized in principle. Estate of Fuimaono, 21 A.S.R.2d 121.

An "equitable," "virtual," or "de facto" adoption for inheritance purposes exists when a decedent performs parental duties towards a child in his household and that child performs filial obligations in return, exactly equivalent to a formally-adopted child. Estate of Fuimaono, 23 A.S.R.2d 33.

The law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. This doctrine may be applied in the absence of proof of a specific contract to adopt. Estate of Fui maono, 25 A.S.R.2d 110.

§5(4) Marital Inheritance

Where there are two tenants in common, each holds one half undivided interest in land which passes to heirs upon death, and wife of one tenant is entitled to one third of undivided on half in dower. Emmelina v. Aneki, 2 A.S.R. 444.

One third in value of all legal and equitable estates in real or personal property possessed by husband at time of his death are to be set apart for his surviving widow in fee simple. Tolivale v. Ufanua, 3 A.S.R. 196.

Where wife’s interest in trust estate terminated upon her daughter’s reaching age of 21, she then had no interest in trust estate nor any right of dower therein. Tolivale v. Ufanua, 3 A.S.R. 196.

Great weight of authority is that widow is not co-owner with heir upon death of husband but that right of dower is merely right of action. Tolivale v. Ufanua, 3 A.S.R. 196.

Husband of woman who dies intestate, at best acquires a life estate in her real property, known to the common law as courtesy. Willis v. Government, 4 A.S.R. 609.

Holder of life estate in real property by courtesy cannot pass his interest to second wife or children of second marriage. Willis v. Government, 4 A.S.R. 609.

Widow of land owner has undivided one third interest in land by way of dower. (CAS 8.0103.) Puluti v. Muliufi, 4 A.S.R. 672.

Lack of a good-faith belief in the validity of a marriage, in a jurisdiction such as American Samoa that does not recognize common-law marriages, precludes finding a putative marriage for inheritance purposes. Estate of Fuimaono, 21 A.S.R.2d 121.

§ 6 Inter Vivos Conveyance or Gift

Inter vivos trusts are used to pass property at death without the time and cost of a probate proceeding; the trust's assets escape probate but may be subject to federal estate tax. Beaver v. Craven, 19 A.S.R.2d 14.

§ 7 General Legacies and Devises

§7(1) General Provisions

Attempt to will property which does not belong to devisor is of no effect. Faaafe v. Sioeli, 2 A.S.R. 21.

When there is a general devise, property acquired after the execution of the will also passes to the devisee. Lokan v. Lokan, 6 A.S.R.2d 44.

§7(2) Conditions and Restrictions on Legacies and Devises

Where matai attempts to convey fee simple estate to grandson, but law against alientation prevents his conveying more than life estate, there is reversion in grantor upon death of grandson, and upon grandson’s death title reverts to grantor or his successor as matai. Atufili v. Timoteo, 3 A.S.R. 395.

In construing language in wills and trusts, a condition is deemed to be a condition subsequent which will divest a vested interest rather than a condition precedent to vesting, unless the language of the instrument forbids such a construction. Beaver v. Craven, 19 A.S.R.2d 14.

§ 8 Individually Owned Property

SEE REAL PROPERTY § 3 – INDIVIDUALLY OWNED LAND

Property that is individually owned descends to children of deceased owner. Tiumalu v. Lutu, 2 A.S.R. 222.

Court finds that matai devised individually owned land to adopted child. Tago v. Sami, 2 A.S.R. 285.

Widow who was entitled to one-third of deceased husband's interest in individually owned property could not be evicted by husband's relatives from possession of a small part of such property. A.S.C.A. § 40.0103. Tuiteleleapaga v. King, 8 A.S.R.2d. 49.

Land registered by its owner as her individual property was subject to laws of inheritance and passed to the individual heirs of the owner. Tuiteleleapaga v. King, 8 A.S.R.2d.

While § 37.0205 allows trusts for individually owned land, a Samoan proprietor must create the trust for the benefit of a son or daughter married to a nonnative, or for grandchildren arising from the mixed-race marriage. Craddick Dev. Inc. v. Craddick, 28 A.S.R.2d 117.

§ 9 Administration

§9(1) General Provisions

Administrators who had administered estate poorly were not entitled to administrative fees and would be required to reimburse estate for fees they had already received. Lokan v. Lokan, 6 A.S.R.2d 133.

Surviving spouse who received funds belonging to deceased husband, under statute providing for the simplified administration of small estates, was required to pay his debts and funeral expenses and to distribute the remainder of the funds to his legal heirs. A.S.C.A. §§ 40.0334 et seq. In re Estate of Salanoa, 8 A.S.R.2d 26.

Surviving spouse who received funds belonging to deceased husband under statute providing for the simplified administration of small estates, and who used the funds to purchase a pickup truck rather than distributing them to legal heirs, would be required to restore the funds. A.S.C.A. §§ 40.0334 et seq. In re Estate of Salanoa, 8 A.S.R.2d 26.

Adult heirs were competent to decide whether to seek recovery of their share of decedent's estate from surviving spouse who had spent the funds in the estate, but minor heirs could not waive their share of the estate; accordingly, surviving spouse would be required to restore funds to minors' trust accounts. A.S.C.A. §§ 40.0334 et seq. In re Estate of Salanoa, 8 A.S.R.2d 26.

Where counsel for plaintiff who died during the litigation did not move to substitute his client's estate, but instead continued to litigate for two years, recovered certain funds, and then moved for distribution of the funds among widow and various unnamed children of the decedent, court would deny the motion and retain the funds pending qualification of an administrator of decedent's estate. Te`o v. Continental Insurance Co. (Mem.), 13 A.S.R.2d 42.

A.S.C.A. § 40.0334 applies only to estates with personal property under $10,000. A.S.C.A. § 40.0335(b) requires that a petition for the transferral of personal property, made under A.S.C.A. § 40.0334, state the total value of the personal property. A petition requesting authority to negotiate all checks made payable to a decedent not to exceed $10,000 leaves undeclared the value of certain checks made payable to the decedent, and makes a mockery of A.S.C.A. § 40.0334, as it would admit estates with personal property in excess of $10,000 by simply limiting an order of transfer to an amount “not to exceed $10,000. In Re Estate of Fa`avi Sefuiva, 29 A.S.R.2d 76.

Under A.S.C.A. § 40.0332, the terms “estate” and “heirs” are not equivalent, rather an estate includes “heirs, legatees, devisees and creditors.” Pita v. Garrett, 31 A.S.R.2d 158.

§9(2) Letters of Administration

Territorial statute providing for transfer of small estates to persons entitled thereto without letters of administration was inapplicable to estate with assets in excess of $10,000. A.S.C.A. § 40.0334. In re Estate of Fuimaono, 7 A.S.R.2d 142.

When petitioner had secured the transfer of contents of a safe deposit box belonging to decedent by attesting that the assets in decedent's estate had a total value of less than $10,000, and safe deposit box was subsequently discovered to contain assets whose value was greater than $10,000, the assets could not be distributed or retained by the petitioner without the issuance of letters of administration for decedent's estate. A.S.C.A. § 40.0334. In re Estate of Fuimaono, 7 A.S.R.2d 142.

A surviving spouse is ordinarily entitled to issuance of letters of administration. In Re Estate of Fa`avi Sefuiva, 29 A.S.R.2d 76.

The surviving spouse is entitled in priority to letters of administration with regard to his or her deceased spouse’s estate. Pen v. Pen, 30 A.S.R.2d 119.

§ 10 Taxation

SEE TAXATION § 7 - MARITAL DEDUCTION

§ 11 Fiduciaries

§11(1) General Provisions

Where one party to litigation, in violation of a court order, had released money to another party which had then spent it, both parties were jointly and severally liable to a third party who was held entitled to the money; as between the two parties who violated the order, the party who received and spent the money would be required to indemnify the party who merely released it. Bank of Hawaii v. Congregational Christian Church, 9 A.S.R.2d 100.

§11(2) Fiduciaries for Minors

SEE FAMILY LAW § 3(4) – GUARDIANSHIP & Fiduciary Duties

Trustee of minor's estate is charged with preserving funds in the estate until the minor reaches adulthood, and should give careful scrutiny to all proposed expenditures. In re Moea'i (Mem.), 3 A.S.R.2d 12.

In deciding whether to approve expenditures recommended by trustee of minor's estate, court considered the amount remaining in the trust, whether the amount requested was a substantial percentage of the amount remaining, the length of time remaining before the minor reaches adulthood, other expenditures likely to be requested, and whether the trustee had carefully scrutinized the proposed expenditure. In re Moea'i (Mem.), 3 A.S.R.2d 12.

Duty of a fiduciary to be zealous in protection of the interests of beneficiaries is at its highest when interests of beneficiaries may compete with personal interests of the fiduciary. Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28.

Guardian of the estate of an incompetent person could not discharge its obligation to account for funds belonging to the estate merely by informing the Court that all the money was gone, even when the guardian was an institution whose management had changed hands since the establishment of the guardianship. In re Estate of Auelua, 7 A.S.R.2d 70.

Court will not ordinarily approve proposed division of property among minors and their guardians without clear and convincing evidence that the proposed division is fair to the minors. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Duty of a guardian or other fiduciary to be zealous in the protection of the interests of those to whom the fiduciary duty is owed is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Although retention of a single attorney to represent the interests of minors and the personal interests of their guardian may sometimes be justified by convenience and financial savings, the guardian and the attorney must carefully consider potential conflicts between the interests of the guardian and those of the minors. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Court's signature on order authorizing guardian to proceed with a transaction and deposit a certain sum to the account of minors did not preclude court from subsequently deciding that the minors were entitled to a greater sum, where (1) guardian was an attorney who also represented another party to the same transaction; (2) the draft order was submitted to the court by the guardian subsequent to a hearing at which the court had given verbal approval of guardian's proposal to proceed with the transaction and hold the proceeds subject to the court's future orders on their disposition; (3) allocation of the proceeds among the minors and other parties to the transaction was not raised at the prior hearing; (4) at a subsequent hearing after the court had signed the order but before the transaction had actually occurred, the guardian did suggest that his other client was entitled to some of the proceeds of the transaction and the court expressed disagreement. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Legal guardians are not responsible for funds deposited with the Court's registry and need not make periodic reports concerning such funds. Judicial Memorandum No. 1-88, 7 A.S.R.2d 143.

Funds held in trust may be held in interest-bearing accounts outside the registry of the court, but court may require periodic reports, bonding of guardian or trustee, and/or the continued involvement of an attorney in order to protect the interests of the beneficiary. Judicial Memorandum No. 1-88, 7 A.S.R.2d 143.

Father who spent funds belonging to minor for general family purposes rather than depositing them in court-ordered guardianship account would be required to restore the funds, plus the interest that would have accrued to the minor's estate if the funds had been deposited in the guardianship account. In re Guardianship of Sagapolutele, 8 A.S.R.2d 24.

Case in which (1) child's injuries were unlikely to have a shattering effect on the parent-child relationship; (2) the parent and guardian ad litem might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship. In re Guardianship of Falelua, 13 A.S.R.2d 83.

§11(3) Related to Trusts

Funds held in trust for minors and other incompetents may be deposited in the court's registry, where they will be placed in interest-bearing accounts, no trusteeship fees will be charged, and disbursements will be subject to court approval. Judicial Memorandum No. 1-88, 7 A.S.R.2d 144.

Legal guardians are not responsible for funds deposited with the Court's registry and need not make periodic reports concerning such funds. Judicial Memorandum No. 1-88, 7 A.S.R.2d 144.

Insurance proceeds held in trust for person who had suffered mild brain damage in an accident, but who was able to work, who did in fact work on his family's plantation, and who could expect to live for many years, should not be exhausted through disbursements to his father to be used for general family purposes, but should be reserved for future emergencies related to the continuing medical condition. In re Guardianship of the Estate of Togamau, 14 A.S.R.2d 65.

The essence of a "life estate power of appointment" trust, qualifying for the "marital deduction," is the combination of income for life and a general power to appoint, both vested in the surviving spouse. Beaver v. Craven, 19 A.S.R.2d 14.

Distributions from decedent's estate to a "power of appointment" trust qualify for the "marital deduction" if they are first included in the gross estate, but the survivor's power to appoint must be quite broad to qualify for the marital deduction. 26 U.S.C. § 2056(a). Beaver v. Craven, 19 A.S.R.2d 14.

The general rule, except as provided otherwise by statute or the trust instrument, is that on the death of a trustee and any pending appointment of a new trustee, the trusteeship devolves on any surviving trustees. Beaver v. Craven, 19 A.S.R.2d 14.

Trusts in which the surviving trustor is both beneficiary and trustee are allowed, except where a sole beneficiary is also the sole trustee, on the theory that the legal and equitable titles held as trustee and beneficiary are sufficiently different to prevent the legal estate from merging into the equitable one. Beaver v. Craven, 19 A.S.R.2d 14.

Courts are reluctant to remove trustees, especially those appointed by the settlor. Beaver v. Craven, 19 A.S.R.2d 14.

The general, common-law rule is that trustees must jointly exercise all powers calling for their discretion and judgment. Beaver v. Craven, 19 A.S.R.2d 14.

Legal title to trust property is held in the name of the trustees, not the name of the fictitious trust. Beaver v. Craven, 19 A.S.R.2d 14.

Since trustees must jointly exercise all powers calling for discretion and judgment, if trustees of a trust whose corpus includes corporate stock call a shareholders' meeting without a co-trustee, the meeting is unauthorized, and its proceedings are of no effect. Beaver v. Craven, 19 A.S.R.2d 14.

When two persons, particularly family members, discuss and plan that one will manage the other's property or business affairs while he is away, a fiduciary relationship is established between them in the absence of actual fraud. Jennings v. Jennings, 21 A.S.R.2d 40.

Although 14 C.F.R. § 47.7(c) does not state how one might come to hold legal title to an aircraft in trust, neither does it limit such a prospect. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

Legal title to an aircraft in trust can arise by judicial order under 14 C.F.R. § 47.11(h). Furthermore, this section places no limitations on the situations in which this might occur. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

14 C.F.R. § 47.5(d) does not limit the definition of "owner," but instead provides that, in addition to those persons holding legal title, the term shall include enumerated persons not normally thought of as owners. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

Under 14 C.F.R. § 47 a trustee can clearly be an owner for registration purposes. Samoa Aviation, Inc. v. Bendall, 28 A.S.R.2d 222.

§ 12 Small Estates

§ 13 Future Interests & Rule Against Perpetuities

Under the Rule Against Perpetuities, all future interests must vest or fail no later than twenty-one years after the measuring period of lives-in-being when the interest is created. Beaver v. Craven, 19 A.S.R.2d 14.

The Rule Against Perpetuities applies only to contingent remainders and executory limitations, not present interest or vested remainders (except for interests vested in a class subject to open). Beaver v. Craven, 19 A.S.R.2d 14.

When an interest is vested in a class subject to open, the number of persons who will take and the size of each person's share must also be determined within the measuring period of the Rule Against Perpetuities or the interests of all class members will fail. Beaver v. Craven, 19 A.S.R.2d 14.

Gifts which violate the classic Rule Against Perpetuities may be valid under some modern alterations to the Rule, such as the doctrines of "wait-and-see," separability, cy-pres, and equitable approximation. Beaver v. Craven, 19 A.S.R.2d 14.

Savings clauses are upheld if carefully drafted, so a trust provision creating an interest that could be interpreted as violating Rule Against Perpetuities will not be construed to do so where instrument contains another provision limiting duration of such interests to those permitted by law. Beaver v. Craven, 19 A.S.R.2d 14.

Whether a remainder interest in a trust is contingent, vested, or vested subject to being later divested depends on the intent of the trustor, as determined from the provisions of the trust instrument. Beaver v. Craven, 19 A.S.R.2d 14.

Since the law favors vested interests, remainders will not be construed as contingent when they can be taken as vested, particularly if the trustor's intent is in doubt. Beaver v. Craven, 19 A.S.R.2d 14.

An entire trust will not fail unless the provisions which violate the Rule Against Perpetuities are so inseparable that eliminating them would violate the settlor's main scheme in settling the trust. Beaver v. Craven, 19 A.S.R.2d 14.

In determining whether a trust's provisions which violate the Rule Against Perpetuities are severable, the grantor's intent governs, and the general rule favors severability. Beaver v. Craven, 19 A.S.R.2d 14.

§ 14 Wrongful Death

SEE TORTS § 11 – WRONGFUL DEATH

Most elements of the award in a wrongful death and survival action, including loss of financial support, companionship, affection, consortium, and parental guidance, devolve directly upon the survivors; only the damages attributable to the pain and suffering of the deceased party ordinarily accrue to the estate. Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28.

Under territorial statutes governing wrongful death and the survival of actions, decedent's estate is entitled to recover only the reasonable expenses of the decedent's last illness and burial and compensation for injuries suffered by the decedent prior to his death. A.S.C.A. §§ 43.5001(b), 43.5002. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

Under territorial wrongful death statute, damages for loss of society, companionship, comfort, protection, and related damages, as well as any pecuniary loss suffered on account of the decedent's death, are recoverable not by decedent's estate but by the surviving spouse, parents, children, or other next of kin, if any, as the court may direct. A.S.C.A. § 43.5001(b). In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 32.

Court could not approve proposed final accounting and order of distribution of decedent's estate where the sole asset listed in the accounting was an amount received in settlement of a wrongful death claim, and the administrator of the estate had not requested judicial approval of the settlement as required by statute; in the absence of judicial approval of the settlement, it affirmatively appeared on the record that the estate had no assets. A.S.C.A. § 43.5001. In re Estate of Ah Mai (Mem.), 14 A.S.R.2d 55.

An application for designation as the proper parties in a wrongful death action has been the practice in the High Court, and such designation also appears to be statutorily required, at least in the absence of a prior designation of a personal representative (administrator or executor) of an estate. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

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