The Hawaiian gazette., 1876-05-10

W Ill leaVe. SoS-O-
Not computing interest which must be added
! These charges are oil duly verified, aud were made
4 by Dowsett to persons who might reasonably sup
pose that he (poSselt) bad authority to act as
administrator. They are therefore binding upon
the rightful administrator afterward appointed il
| he had assets of the interstate. See Thompson
vs. Harding, 20 Eug. l.. iIg. AS
! do not allow payment of so made by Dow.
sett to L. Preston March ID, 1872. for this is adj
/ mitted to have been on account OF legal service
to the widow.
! The taxes (S5.0D) on the real estate might
! very properly have been paid By the MORTGAGE in
possession and accounted for against those hold.
/ ing the equity of redemption, but as they were
paid by the administrator consider this amount
as properly added to the amount SSS.62 which
binds the administrator.
Here then we have payments made by per-
son after the death Of an inIestate without as
sets. How far arc these payments good against
the real estate of said iniestute?
AT law, the land deseends to the heir subject
to the payment of the debts, If there be q def
cheney Of personal assets and if there are no as
sets, the administrator can by the practice long
obtained in this country, procure an order OF sale
Of the real estate for the payment OF these debts.
IL seems 10 me that Dowsett 10 in no worse pc
stiOn than the administrator would be in, if he
had made the payments. or, If the creditors we're
still unpaid and the administrator fled his petit
ton to the Probate court for an order of sale in
order 10 pay them and in order to pay such dsbis.
the real estate, although iraudnlenlly conveyed
by the deceased, may be sold by the licensed nd.
mnstrator.
Drink water Va Drinkwater. Mass 353. But
this may not be done to defray merely The char
ges of administration. h. 800
This order of sale has been obtained in this
case (see records OF Probate Court, re John
Booth, deceased.) aud may be proceeded with.
and the defendant Kapilau may be enjoi:ed
against setting up this deed as against this sale.
But the bill goes further it prays that the
decdiOf conveyance in question be adjudged void
and ordered delivered up for cancellation.
As laid down in & former part OK this decision.
deed in fraud OF creditors is good as aguiDst the
grantor aud bis heirs.
But in order to bind the grautor and his heirs
the deed must have been delivered
Was the deed delivered to Kapilau? 1t is da-
ted July 29th, 1868
Dimond testifes that, on the 18th September,
1868, it was in Booths possession. On the 2lst
October, 1865 it came from the possession Of
Booth, 10 the view Of several persons at the Sta
ton House. and Kopiau was also present.
Mahoe swears that Booth and KapIlau told him
that the deed had been taken by Booth from ka-
pilsu and torn up.
Mrs. Long tesli6es that Kapilau told her that
he got the deed from Booths trunk at his house
on the night Of his death and the record shows
that it was not recorded until November 9th,
1871, nearly three months after Booths death.
The deed is thus traced back into the grantors
possession, after it was in the grantees posses
sion, as testified 10 by John Naluahi in July,
1868.
Taking all these facts into consideration, to-
yether with Booths possession Of the premises
until his death, | am led to the conclusion that
his deed though once delivered to the grantee |
10 delraud Booths creditors YVES surrendered to |
MIN, after the occasion for using it had passed.
This ia not delivery which would bind Booth |
{ alive, it therefore cannot bind his heirs.
The delivery must he IN the life time OF the
,rantor. jackson VS.. Leck, IL Wend los
1.-The presumption that deed was delivered on
he day it bears date never obtains when it is pro-
ed to have been in the hands of the grantor at
period subsequent to its date" Elsey vs.. Met
alf, l. DEMO, 1913.
There must be acceptance by the grantee, to
onstItute delivery, (Jackson ex dem, flames VS..
'hipps, Johns, 4lS)
And even though recorded there is no delivery
nless the grantee assent. Barnesvs. Hatch, 3
Y. H., 3O5, Washb. r. p. $50.
| am therefore OF the opinion that as the con-
eyance 10 question was never finally delivered
0 Kapilau, nothing passed by it.
Decree accordingly. A. FRtNCIs JUDI,
Justice Supreme Court.
S. B. Dole for petitioners, K. Preston for de-
eDdaDt.
Honolulu, April 5tb, 1876.