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THE PACIFIC COMMERCIAL ADVERTISER: HONOLULU, NOVEMBER'S, 100.
ir,.,.: I'M v' umltT'taiul that that was to lcconvcyctl to you , ,,iir I,r"!" rt.v or for J'"'1 to hoM von have stated for ' .1 .. I,, nt n r ,f li. r relatives?" "That wan her idea.' Ij -111' U'lllltll tlot 1'llVfi ,11.1,1,. 4l. .1 1 . ,.r l;t r "".- uiv neon m the wav (, f ,. ,11.1 it' -I"' I""1 -"Pll that you would have devoted ft (, ir ,,,;...-, than those- she wUni and although she con . rpij ,. "ii an aUdute discretion, it wa in the confidence M,,u w.hiM u-f thsit discretion in favor c.f her .relatives." A. ;.... it .he lia.I not eompteto confidence in ine she could () f ,1V ,.u-n in.- complete discretion." (. "Ad Vou ir,..-l I" ' tliinkiiifr tlut you wouhl mo me your discretion . r ,,,, I, , : r ,.f h.-r relative r A. -Well, I wouM not so 't , , i r wli.-n I ha.l very little to say aUut the matter, it WJ4 ,!.,. in very h..rt time." Q. "You allowed her to think tiif; .li'l nothing to dissuade her from that i.lea, not for , uint l "fit, I'"" thr Unrfit of thtmr irhoin mid" A. -11.. f,,"f ;" ''m' " l that at the time f ml.'Jic r!'i 'hrd f" .vo" "he did not liclicve and you did not ! , r f.. I l"t .Vo" were seeking your own profit or that ,,, w,..iM t im advantage of the absolute character of the deed, jM r,r t,. i- the .nerty for our own use?" A. 7 don't Ih'mk l'"if v'" thoiojht or dreamt it inti d above a iig tacked on to the baWndu m. !.f!.i-r "f ",,r 'f ntlieirnt in itself to constitute a precatory r, j , . lt.nnlv strong corroWative evidence that it wa. tlui . i! I inf utiofi of Martha that the grantee should hold the , ,.r'v -'i!'''t t' r trust of some sort. .iihI iill the other evidence in the case, then, we ',, vr .1:1 ! : i I th.it. if wa the desire and intention of Martha at -If a-lvcd Smith' a-ifance in the drawing up of the , ,m it -'nun' rit. that the whole In nctieial ownership in the .,., ,- .'i..iild i :-- f- her live in phew and niece and that the -vn,. i, r f. l e drawn uj should he hut the mean of aceom j.'M.ii.tf th.it. ol.j.et. Smith !t.iteuKnt that Martha wihel to t ii. phew and Ilattie Urown the ole lK-netieiarie to v !':! ii of the two other niei e, we think wa eorni'tlr ae , , ,1 I'. r hv Circuit Judge Carter on the theory that it wa ' I n h'-filify toward the two niece heeaue of the active j v;' 'Am hv theni in I. ringing thee ppu'eeding. t'.i. t fh.if M.irth.1 on one or more o4eaion sjud that he ! I i ;w the pr. .jH-rty t the children "a a homestead," doe t in r. -sirilv -h..w that he intetnhil for them a life estatr . onlv. I: ,it li.id hi t ti In r intentioti h would have made wnne provi . i a t" li..v the remaimh r wa to 1 e dijwil of. Xo mention ii h r tuaiiith r, or provi-ior. eoneerning the same wa i riii.i ie hv In r. Moreover, where she did contemplate provi . N f. r lii- onlv, -he -aitl so distinctly, a in the cne of ('apt. I II. I'.i'-.vmi. We I lieve on nil the ev'ulence that she did not in I f.i 'Mint the e-fate of the five for life. II. f irtiiiig now t the u!ije't of the drawing of the deed, we "i th.if Smith i!i hm d ahout a week after hi conversation with r!..i al.o I- n t't rred to and finally on the 2th of July, l'.H, ':! 'I the i:itruuienf. Martha, a f ter nailing it over, said: A it in, i. It- vnii ! if that way f to which Smith replied, "! the 1 1 f w ay to do if,-o that there shall he no quarreling," f r U to that i tfecf. ;Martha then signed the deed, and alout ', r 1 1 ii iniiiiifis later nckliowletlgei it he fore a liofarv. We t'r.'iu t!ie evi'h tiee that tlx deed wa executed in the h '. ii Martha' art, that in thaf way would her will eonceniing ' ;r irtv j ah..- tafed U aceomplUhed and in the full eon " ': t'n.if Smith w.iuhl f.iithfullv arrv out her wishes; fur ' . 'Li' mith led hi r to helieve that if idle siglietl the deed ! imi he wt.uld i e to it that the proju-rty did go in accordance 1 "i I t r w Mi , ti In r five nephew and nieces, that hut for hi " r:'. rn.fc and adiee she would have dispKed of her property tI v a ill (,r hv deed unmisfakahly detining the trust de i. i!i l th.it Smith, in adviing her a he did ami in obtaining '" I is it ti" -tamls a. fnl mala tide and with tin fraudulent :'' ' "ii ?. o i lire to hiin-elf the ilnolute title to the land. I' w ,(. HH-.iin-f. conscience t p nnit Smith or his heir ' "''.mi the ji.lvantrtge thu gaineil. L'nder eireumstanci such "' Kj iity puard the grantee a i tnistee rx nuilrfirio. ' "' i 'Tin tie tni-r o declared i not hased UJ)on the pnmisr '. I uf iii i-i out of the intentional fraud committed. The hill ' ' -iitly a!hi: fact upn which this rrdief can he granted in ' ' ' ril. uh tieer the h gal title to property, real or jm r -' I. .is hi . n i.l t .lined through lu tnal fraud, misrrpnentation, 1 '' i i ' . t r throuuh tindfle influence, duress, taking advan ' "f "i.e's t alne or neei-H,ifiet or thnugh any other simi r I . ,n,4 ,,r inhh r any other similar circumstance which render -'"i'-, i i.l i.. us for the In hh r of the legal title to retain and ' ' " ' fiei.d infi r sf, equity itn presses n eontruetivt trust '' ' " 1 1'1 ; i rt thus aeiiiired in favor of the one who i truly and ' ";!..! to the sjiiue, although he may never tie.rhups 1 ' 11 " i) h -.d e-tate therein; and a court of npiity ha juris ' 1 ' r. i, h the property eit'ierjw the hand of the original - 'i'. r in the hand of my suhsetpient holder, until a " I ' t it h. u.mmI f.dth ii n. I without notice aeipiin- a higher " -I t.t t. prt.jrty ndieved fnm the trn-t. The fonn ' " " ",' ,!" tru-fs. which are termed rx mah firjo or f ar- pr aetically without limit. The principle i apphe.I 1 ," t it a i . ,f.-;,rv f.,r the ol.taining of complete justjee, 'h" law inav id so give the n-medv of damage again-t ' i-l,-r.--j IN,,,,. I',,. Juris., See.'lO.-.0,. (-; "!.. I . ! , tthd ami even rommori fonn of trust. rx r-. w hi never a person acquire the legal title to land ' riv ,y tuean of an intentionally false and fraud !" ..luisj. to hold the f ame for a certain pccitied pur- " h. f' - , x .i t n j .!-. a promise to convey tho land to a desig 1 1 i ! i d, or to reeonvev it to the grantor, and the like '.;'- 'hiss fraudulently obtained the title, ho retain, use, ' ' s f!. ,.Pl,p.rtv n4 a'Udntely hi own, so that the whole , ' ' ' "'i hv , .. ;,f wj,ieh tho 'ownership is ohtainnl, U in " ''; " .f aet-ial deceit. K.piity regnnls studi si person n : ' P.p. rtv charged with a constructive tnist, nnt will ''i"i fnhill the trust hv conveying according to his en '"' lo.vvil,. . " l:r -A,((. ,, st.it. of Fraud, See. Ul et .e..; 1 Story - s '" -"'.: Hill on Trusf.i. top page 2. "! "I- rvnl that in all thee ca-r there is fMnething ' r l n ' v. r',,1 F-..1 re r. ipf of lhe title to real ifate, with a wind if. -uhieet to a trust. There is an interference " the prop rtv, hv mean of whi-di he i induced ' x. cut I..,, lev himself of his dr-igns for the henefit rl ' r . . . and to Vafe the f xecution to the party . eluding 1 ! ':-' promise, and through Mich fal-e promise obtaining title to the property. The distinction is this: If A voluntarily conveys land to 15, the latter having taken no meas ures to procurt' the conveyance, hut accepting it, and verbally promising to hold the .property in trust for C, the ca.e falls within the statute, and chancer' will not enforce the parol promise. But if A was intending to convey the land direcfly to C, and B in terposed ami advised 4 nt to convey directly to C, hut to convey to him, promising, if A would do ?o, he, B, would hold the land in trust for C, chancery will lend its aid to enforce the trust, up on the ground that B obtained the title by fraud and imposition upon A. The distinction may fcem nice, but it is well "establish ed. In the one case B has had no agency in procuring the con veyance to himself. In the other he has had an active and fraud ulent agency. In the one case he has done nothing to prevent a conveyance to the intended beneficiary. In the other he has, by false promises, diverted to himself a conveyance about to bo made to another.'' fsnitrif r. Lnntnjj 51 111. 464-4GG. See also Lariiion r. Knhht, 140 111. 232; Doml r. Tucker, 41 Conn. 107, 10S, 205; Fischbrck v. frrm, 112 111. 208, 214; Ifooktr r. Axfortl, Mich. 4."2, 450; Harrow r. (IrrrnoiKjh, 3 Vesey Jr. l.M, 154; and tiiffvn r. Taylor, l.!) Ind. 373. Some of the cases seem to go to the extent of holding that even where the promise to hold for the lenefit of another, or to convey to another, is made in good faith, if the grantee thereafter de clines to carry out his agreement, equity wili grant relief by de claring the grantee a trustee; but we need not now pass upon tjiat question. Ilattie Brown, one of the nieces, died after the trial and prior to the filing of the bill of revivor. The record fails to show who her heirs are. In view of the conclusion we have reached on the subject of the constructive trust, it becomes unnecessary for us to consider . the question of a precatory trust. In our opinion, Priscilla E. Ilas.-inger, Annie H. Turton and Henrietta E. 1 Jihs, the heirs of W. James Smith, deceased, should, be declared trustee. of the property deserilcd in the deed under consideration for the use of Mary C. A hi rich, Helen B. King, Xorman Brown and Douglas K. Brown, and other, if any, the heirs of Harriet X. Brown, and should be ordered to convev the said projHTty by a good and sufficient deed to said lieneficiaries. The case is remanded to the Circuit Judge of the First Circuit, with instructions to correct, in the particulars above specified, the decrees reviving the original cause, if it be found that such decrees were in fact erroneous in those respects, to ascertain vh i the heirs of Harriet X. Brown arc, and to enter a decree in ac eorlance with the foregoing views. Kin in if, Halloa d- Mv(Uinahan and . .1. ll'vjelow for com plainant. Hobntxoii tG Wihhr for Henrietta E. Boss. H'. ). Smith aiul .1. Lnrix, Jr., for Priscilla E. Hassinger and Annie II. Turton. Xo apix arance of or for 1). K. Brown. DISSENTING OriXlOX OF J. ALFRED MAGOOX, ESQ. I am unable to concur in the opinion of the Court. Were I not satisfied that the defendants should prevail in this case a difficulty presents itself which cannot be overcome on this appeal as the ca.-c now stands. The original plaintiff were Mary C. Aldnch, Helen B. King, Harriet X. Brown, Henry S. Sainton, Charles E. S. Swinton, Helen M. Seal and Xorman Brown, and Douglas K. Brown, by their next friend W. C. King. Henry S. Swinton has practically disclaimed in his testimony, and it is perhaj immaterial a to him whether he is party plain tiff or defendant. Helen M. Seal, by stipulation, was made parry defendant, but an order of the Court signed October 24th, 1MH, contain the following, "said suit shall hereafter be en tj tied Marv ( '. Aldrieh, Helen B. King, Henrv S. Swinton, Helen M. Seal and Xorman Brown hv W. C. Kinir, hi next friend, vs. Priscilla E. Hassinger, Annio M. Turton and Henrietta E. Bos and Douglas K. Brown." It will be observed that Mrs. Seal is still improperly joined a party plaintiff and that Charles E. S. Swinton ami Ilattie K. Brown by the same order an' left out of the case entirely with nothing on the record to show the reason therefor. The interests of Charles E. S. Swinton are directly op- 9 jMed to those of Man- C. Aldrieh, Helen I. King, Xorman Brown and Harriet X. Brown, and he should not be a party plain tiff in this action a he has not now and never has had indepen dent counsel herein, and has not personally made any appearance in the case. While it is not mressarv that a jwrty plaintiff hav ing interests adverse to the other plaintiffs should in equity Ikj a defendant; (1 Pom. Eq. J nr. p. it is essential that the record show that he i represented, if he le made a party plaintiff, but no attorney can represent conflicting interests in a case. "An attorney cannot accept employment from adverse litigants nt the same time and in the same controversy, though his inten tions and motives are honest. The rule is a rigid one and design ed, not alone to prevent ti e dishonest practitioner from fraud ulent conduct, but as well, to preclude the honest practitioner from putting himself in a josition where he may 1k required to choose between conflicting dutie, 0r le led to an attemjit to re eoncife conflicting interests rather than to enforce to their full extent the rights and interest which he fhould alone represent." Stromj r. International lUtihlinj Lmn tC- Inrrntinmt Union, -2 111. App. 42? and teo Weeks on Attorneys p. "4S, 15 Ency. PId. Ar Pr. p. 5S. It is a familiar rule of equity that all persons materially interested in the event of the suit, must be made purties. This confusion with reference to the parties and their apiK'arance is, in all probability, due to the fact that this litiga tion has been before the Courts, in one way or another, since 1SD1, and mdny different counsel have appeared in the ease. As I desire that no misunderstanding shall arise with reference to what I have aWe stated, I will say that no reflection of any kind is directed against counsel in the casey either for the real plaintiffs or the defendants, for nothing could be more honorable than their conduct in their most able presentation of this .case. Counsel for Mrs. Aldrieh, Mrs. King, Harriet X. Brown and Xorman Brown, who should le the real 'plaintiffs in this case as it now stands, rely for relief upon two grounds. They, in the first place, contend that a precatory trust was created. While the doctrine of precatory trust is firmly established it is certainly looked upm with great disfavor. 2 Pom. Eq. Jur. Sec. 1017. The doctrine defends upon, a presumption of law that a person using words of belief, desire, will, request, wish, hope, etc., in tended to give to 'those expressions the meaning of direction, command, etc. The doctrine is applicable V) wills which are made in contemplation of death and not to deeds. In a, will the ' testator must leave to others the execution of his wishes. He is obliged to substitute as it were the discretion of another for his own. If it is claimed that the deed in question was to serve the purpose of a will, the answer is. that it was not a will, and I do not believe in extending the doctrine of precatory trust. Even' though the deed created a precatory trust it would contravene tho contention of the real plaintiffs. By the deed the relatives within the second degree of consanguinity would be the cestuis que trustant, but counsel for the real plaintiffs rely upon parol ' proof to establish the trust in their behalf in common with Douglas K. Brown. This is directly contrary to every principle of law and equity. It is an attempt to vary a written instrument by parel proof, which manifestly cannot be done. 1 Perry on Trusts, 3rd p. 113, in note and case there cited; Irvine r. Sul livan, Law Rep. 8 Eq. 073. "When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagements, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing, and all oral testimony of a previous colloquim between the parties, or of conversation of declarations at the time when it was completed or afterwards, as it would tend in many in stances to. substitute a new and different contract from the one which was really agreed upon, to the prejudice, possibly of one of the parties, is rejected." 1 Greenleaf Evi., 13th Ed., p. 321. "The writing, it is true, may be read by the light of surround ing circumstances in order more perfectly to understand the in tent and meaning of the parties, but as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are" to be added to it, or substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as contradistin guished from what their words express, but what is the meaning of the words they have used." Id. 322. "The rule excludes only parol evidence of the language of the parties, contradicting, varying or adding to that which is contained in the written instrument, and this because they have themselves committed to writing all which thev deem ed necessary to give full expression to their meaning, and because of the mischiefs which would result if verbal testimony, in such cases were received." Id. p. 328. ' ' The degrees of consanguinity should be computed according to the common law; but if it was intended to create a trust and it is uncertain under which rule the degrees are to be computed, and for this reason the deed to Smith is inoperative, the land must go to all of the heirs of Martha Swinton and not to the real plaintiffs. The real plaintiffs in the second place, contend that in case no precatory trust was created, the facts and circumstances show a constructive trust. A constructive trust must under the cir cumstances in this case be established bv actual fraud; there is .no element of constructive fraud involved. If such a trust exists, it rests entirely upon a deliberate intent to cheat and defraud Martjba Swinton when the deed was signed. To sustain this con tention the evidence should be clear and convincing. 15 Am. & Eng. Ency. of Law, 1195; Lmitry v. Lnntnj, 51 111. 458. Instead of being convinced that there is actual fraud, Iam convinced to the contrary. Counsel for the real plaintiffs state the case as strongly in their favor as it can he put. This is what they say, "Xow those whom she preferretf it is perfectly clear from the evidence in the case, were the five children already mentioned, so that it seems pretty clear that at the time W. James Smith called with reference to tho property Miss Swinton's idea was still as it had leen for years pasty that the property after her' death should go to her five nephews and nieces." I cannot con sent to brand a man as a scoundrel upon any such theory. That it is "pretty clear,'1 according to the mind of counsel for the real plaintiffs, that Miss Swinton's idea was that the "property' after her death should go to her five nephews and nieces, is not sufficient. It must be clear. Many things might have happened between the time when she last spoke to any of her nieces and nephews in regard to the matter, and the execution of the deed, which was about one week, according to the view of the testimony most favorable to the real plaintiffs. Even if it were admitted that the testimony Tir the real plaintiffs in this regard be true, it would not necessarily follow that Miss -Swinton had not changed her mind. She might have recognized her ingratitude towards Mr. Smith, as she saw her end approaching, and have been stricken with remorse at leing the recipient of his bounty for all those twenty-three years, without recognizing him in any way at her death. She had no one who had any peculiar claims upon her . but Mr. Smith. She was greatly indebted to him, and is it any wonder that sle should want to return to him, when she thought she no longer had any use for it, the property which he had. so generously given her. She could see that by giving it to her five nephews and nieces in all probability it would go from him for ever, and why should they have it? What had they done for her to counterbalance the services and generosity of Mr. Smith, not onlv towards her but towards the members of her family. Under the circumstances was he not the natural object of her bounty ? She had even' reason to believe that, owing to the almost paternal love he had shown for her nephews and nieces, he would -give the property to them or to such of them as he thouglft most deserving when he should no longer need it I cannot being myself to believe that this man who had been so good to the mcimVrs of this family, had any intention in his heart to commit the fraud now attempted to be fastened upon him. ,It was Miss Swinton who urged the making of the deed who represented the necessity for haste. The deed was executed in the light of day, with tho full knowledge of the family. There was no attempt at concealment. Miss Swinton was in full posses-ion of her mental faculties. It must be assumed that she was a woman of intel ligence. She spoke English letter than her native tongue. She took the deed and read it carefully over in the presence of at least one witness, and then, according to the statement of that witness whose testimony is relied upon by the real plaintiffs, she asked o -.i n " .i u ; in tloj wnv? A. That is the smilll, oo jutiuc- " . only way I can stop a row, from being a row. Q. - iv nnvthinir? A. That is all I heard. not Mia Swinton say to Mr. Smith, I want this to go to the five She did not Q. Did ' '. i . . V-. ' ..V mm- V i t'-v;! Si'-, . ( - m H. , J. : . . X 5 . ft"-. i tv 'fife si-