The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-07-30
Supreme Court Of the Hawaiian I.land.--
In Equity.
APAHU, BY HER NExf FRIEND, VS.. SorH1A
FEARY.
OPINION Of chane.ller Judd.

rs the next friend and guardian dd Item Of an
aged Hawaiian lady, Apahu by name, to de-
clare null and void a certain deed OF convey
ance to the defendant, of parcel Of land stu
ated at kapalama, Honolulu, Oahu, dated
March, 9TH, 1884. The bill sets forth that
kapenapuka is the son Of Apahu, that she is
between seventy and eighty years old, that
she has been partially parslyzed for the past
three years and has been of feeble mind and
incapable of transacting or understanding bus
mess; that she has been cared for and sup
ported by her said son during this period; that
on the 9TH March last, the defendant fraudu-
lently induced the said Apahu to execute deed
Of the said premises; that Apahu was induced
to sign said deed only after repeated attempts
to persuade her To do so, and she finally yield
ed TO the undue Influence OfDthe defendant, not
understanding the nature Of the instrument
That said deed is expressed to be in consider
alton Of one dollar, of love and affection, on
account of past services, and of an agreement
for future services; and the petitioner alleges
that said consideration is neither good nor val
liable, and is insufficient TO support the deed;
that defendant has not in the past rendered
any valuable service to Apahu and has not
bound herself to do SO in the future.
1t is submitted by the plaintiffs counsel, F.
NJ. Hatch, that no valuable consideration is
shown, and affection will not support the deed
because the grantor is not related in any way
OF the grantee. That the conveyance must,
therefore, be considered a settlement for the
use OF the grantor during her life, remainder TO
defendant.
think the plaintiffs counsel is right in this
contention. No adequate consideration is
shown. The past services and support claimed
to have been rendered are fully explained BY
the fact that defendants adopted mother lived
with Apahu, and defendants acts were but the
natural kindness Of nSighboE towards an aged
friend of her adopted mother These are not
sufficient to support deed Of bargain and sale,
under the circumstances. The grantor is
Hawaiian lady Of over seventy years, suffering
from paralysis Of her limbs Of some years
standing; her bodily condition is one Of great
feebleness, and many witnesses say that they
have observed times Of incoherency of speech
indicating disOrdered intellect. The deed is
Involuntary conveyance without power of revo-
cation. The statements contained in the deed
expressing the nsideration, are "the sum Of
81, the grantor's affection for the grantee, on
account Of her havirg cared for the grantor
during times past and her agreeing to support
her 1.-THE grantor) during the remainder of her
life, and bury her, and other considerations"
There is no relation of blood between grantor
and grantee alleged or proved
The grantor has son living (Kapenapuka)
who has adduced considerable testimony as to
the care and support rendered by him to his
mother. The premises are worth from 81 900
to 81, 500.
Reliable witnesses, Mr.. Dowsett and Mr..
Rosa, testify that the deed was read and ex-
planned TO Apahu and that the matter of pro-
curing the deed occupied good part of week.
The attestiDg witnesses testify that they be-
lieve that she fully understood the transac-
ton.
In Court, Apahu said she never intended to
dispose of the land in this way.
note also that this old lady was then at
defendants house, cared for by her, and her
son was absent and did not learn of the trans
action until after it was completed.
Mr. Dowsett says he reminded her of her
son and she said "Never mind that, wish the
land to SO to the defendant as she will care for
me-"
1t seems TO me that this is voluntary con-
veyance to the use Of the grantor, remainder TO
defendant. For, the consideration of future
support by grantee, she not having bound her
self by any covenant, could not be enforced
except from the land, and think that it mist
mean that her support was chargeable to the
land.
Let us see, if in the light of the authorities,
such conveyance can stand. l have no doubt
that the highest Court of Great Britain would
set this conveyance aside.
See Couts VS.. Ackworth, l.. r. Eq. SOS.
See Everett VS.. Everett, L. r. 10 Ed. 4O5.
See Hanley VS.. Pearson, L. r. Is Eq. SIS
See Hall Va. Hall, L. r. IL Eq. 365.
See Thompson VS.. Dutton,23 Oh. Div Isl.
But the Courts of this country have not been
SO liberal in setting aside voluntary convey
ances.
In Along vs.. Along decided by me June 9th,
1881, | adopted the law of Vinsy VS.. Roberts,
100 Mass, 800, where it is laid down that ga
voluntary settlement completely executed,
without any circumstances tending to show
mental incapacity, mistake, fraud or undue in
huence, is binding and will be enforced against
the settler and his representatives, and cannot
be revoked, except SO far as power of revo-
cation has been reserved in the deed of settle
ment."
In the case before me l find old age, bodily
weakness, mental weakness amounting to in
capacity at times, and in addition an IMPROVE
dent conveyance by which the grantor is i'm
nediat.iy deprived of her title to all her estate
for an inadequate consideration and an under
taking for future support, insuliciently exc
cuted >
In Perry on Trusts, Section lPO, the author
says:
at is quite immaterial from whence the
mental weakness arises. 1t may arise from
natural and permanent inbecility Of mind, or
it may arise from some temporary illness or.
debility, or from the weakness and infirmity |
OF extreme old age. Each case must depend |
upon its own circumstances. Questions gen.
orally arise when there is not an entire want |
OF capacity, where no general rule Can be laid |
down. but the Court is left to judge of the ca
paeiiy OF the contracting party, Of the circum-
stances under which the contract was made, |
and whether from all the facts in the case the |
contract ought in equity and good conscience
to be sustained"
In Sc Cal. SO Moore v. Moore) the court
held Tin 1851 that whenever there is great |
weakness of mind in a person executing a |
conveyance of land, arising from age, sickness |
or any other cause, though not amounting to |
absolute disqualification, and the considera- |
lion given for it is grossly inadequate, i'm |
position or undue influence will be inferred, |
and court of equity will, upon proper and |
reasonable application Of the injured party in |
lerfere and set the conveyance aside"
Says Judge Field, in Allore v Jewell, A U.
5. 5ll, at is not necessary, in order to
secure the aid of Equity, TO prove that the
was at the time insane, or in such a
state of mental imbecility as to render her
entirely incapable of executing a valid deed.
It is sufficient to show that, from her sickness
md infrmities she was at the time in con-
lition Of great mental weakness, and that
here was gross inadequacy of consideration
or the conveyance. From these circumstances,
IMPOSITION or undue influence triH be inferred"
Having found circumstances from which
Undue influence can be inferred am of the
opinion that the deed ought to be cancelled.
Decree accordingly.
F. NJ. Hatch for plaintiff; E. Preston for
Honolulu, July 3, 1881.
uPreme Court of the Hawaiian Islands
In Equity.
J. r. BISHOP AND ALBERT JAEGER, ASSIGN
ELS IN BANKRUPTCY OF THos. b. WALKER,
n. q