Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1862-11-08
Ghe polpnesiam.
SUPREME COURT, In EQUITY.
Mary Abby p. Burbank For SELF and as guardian
R. W. Wood.
r. W. Wood.

R.W. Wood. ad il'em'
Chancellor Allen delivered his decision as fol-
lows:
This is bill in equity in which the complain
ant the widow of Samuel Burbank, and guardi-
an ad-litem of his children, minors, alleges that
Samuel Burbank entered into an agreement with
the respondent, dated May Is, 1851, for the pur-
chase OF one half of the KOlOa Plantation with all
the personal property the estate required in the
cultivation of cane the manufacture of sugar,
for the sum of twenty-five thousand dollars, with
interest after one year, and in which he stipulated
to take the sole management of the property for
the term of five years, for the mutual benefit OF
the parties, but without charge, and that one half
of the net annual proceeds should be applied until
the amount due for principal and interest of the
said purchase is paid. 1t appears further, by the
contract that the respondent agreed TO furnish the
money and goods which may be necessary to carry
on the estate charging the usual interest, and to
make sale of all products OF the plantation, and to
do all other business requisite for the same, far
as he is able, at Honolulu, without commissions.
1t was further mutually agreed that neither
party should sell his interest unless with the con-
sent of the other, for the term of five years.
1t is further alleged, that in pursuance of this
agreement, the said Burbank entered into the pos
session of the plantation and labored faithfully for
the of five years, but that during this time it
thought advisable by the parties to devote
large amount Of time, capital and labor to the
drainage of marsh land, and to certain permanent
improvements and additions, which could not be
remunerative within the term of the contract, but
were thought advisable, as the plantation without
them and carried on as before, would prove unpro-
ductive 1t is further charged, that the settle
ment of their accounts it agreed that the price
of the plantation should be $40 ,0O0 instead OF the
sum originally stipulated, and that In consequence
of the failure OF the crops and the considerations
before set forth, it agreed that interest neither
on the principal advances should be paid. 1t is
further charged, that said Burbank paid during
his life So 228 so that the original contract ex-
pred May 18th, 1856, but that he continued to
superintend the estate till the day of his death,
which was on the 10th of May, 1857. 1t is further
charged that tract of land called Paa was pur-
chased for $4,000 during the term of the contract.
And it is further charged, that by mutual agree
ment, made and entered into by the parties, dur
ing the period of Burbank's occupancy of the
premises, he was to have deed of one half of the
plantation, after the coming in of the crop grow
ing at the time of his decease.
And the complainant further alleges. that after
the death of her husband the respondent often con-
suited her in relation to the sale of the estate ad
vising against it; saying that it would be a good
property for her children, and treating her in all
respects a CO. partner, saying that she and her
children had much right in the estate as any
one tudt sue duu udhO q poi-
ton of it that she had reason to be disturbed
about the future as she had ample means of sup
port.
The complainant further says, that she resided
on the estate with her children till October, 1860,
as she had good right to do, and that during this
period she received from the plantation 81 ,S26 62,
or thereabOuts and the complainant further AYERS
that she is informed and believes that the respon
dent has more than once admitted. since the death
of her husband, that his heirs were justly entitled
to a portion Of the plantation, at one time one
third, and at another time One-fOurth. The com
painant further AYERS, that she has made ehorts
for a settlement, without success, and that the
respondent refuses to do aught in the premises.
The prayer of the complainant is that the re-
spondent may be decreed to deed to the heirs OF
said Burbank such proportion of the estate As they
we're entitled to on the 10th of May, 1857, and to
account for the proceeds Of the plantation from
that date and also to render an account from May
18th, 1851, to May 10, 1857 and that the COM
planant may have just equivalent for the labor
performed by said Burbank, and for the money ad
vanced by him.
The respondent admits the contract, and that in
pursuance thereof he took up his residence and la
bored on the plantation for five years, but denies
that the expenditure Of draining the marsh land
was at his instance, but that Of the said Burbank,
although it had been a subject of conversation be-
tween them He further answers and says, that
although the said Burbank usually consulted the
respondent upon all matters OF improvement OF the
plantation and outlays of money beyond the cur
rent expenses, still he was allowed paramount
CONTROL agreeably to the agreement or contract
aforesaid.
The respondent denies that at the time the said
Burbank assumed control resident manager,
that the draining undertaken because the plan
tation likely to prove unprOductive, but AYERS
that the crop under cultivation at the time, was
the largest and most profitable of any during his
management. The said Burbank, however, was
always confident of profitable results from the
swamp land, and believed this would enable him
to pay the amount due by him on his contract for
Athe purchase-that he planted on said marsh about
eighty of cane before it was fully drained, and
that although the respondent expressed his doubts
about the result, the said Burbank continued san
guine of large returns till within about three
months of his decease, when considerable portion
of the cane growing thereon was blighted The
respondent further says, that 1t was not under
stood or agreed that the plantation should be val
ued on settlement at $40, 900 instead of $4,000,
hut that he did say to him, that perhaps at the
time of making the contract, the plantation was
valued too high. and suggested willingness to
duce it to $40 900 but that said Burbank repli-
ed, she would have no more gratuities, he pre-
ferred to work it out and the result; and that
the subject was never reverted to again. Said re-
spondent denies that he ever intimated to said
Burbank or any other person, during his lifetime,
that it was his purpose not to charge interest on
the advances on the contract. and AYERS that he
has no recollection of ever having had any conver-
sation the subject, but AYERS that if there is in
existence any written memorandum from which it
be inferred that it the purpose OF this
defendant give to the heirs OF the said Burbank
the advantage of the proportion made by this de-
fendant to the said Burbank, to reduce the esti-
mated value of the plantation to 10000, which
the said Burbank refused to accept during his life
time, and to forego and relinquesh the claim to in
terest on the advances made by him, and on the
stipulated price agreed upon by the parties to the
said agreement, it is only copy surreptitlousiy
obtained of u private memorandum made by this
defendant soon after the decease Of the said Bur-