The Hawaiian gazette., 1884-07-30
Supreme Court Of the Hawaiian I.lAzas--
In Equity
ArAHu, ny HKR NExr FnrKSp, VS.. soFHIA
FKAnr.



OriHion ef Charoslior JHi4.
This is a bill in equity by ono Kapenapuka,
as the next friend and guardian al hiss' Of an
| AGED Hawaiian lady, Apahu by name, 10 de-
| clare null and void a certain deed Of convey
ance to the defendant, Of parcel Of land stu
atcd at Kapalama, Honolulu, Oahu, dated
/ March, eth, lssi. 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 paralyzed for the past
/ three wears and has been Of feeble mind and
| incapable of ,ransac,ins OF understanding bus :
/ iuess: that she has been cared for and sup
/ ported 10y her said during this period; that
/ on the 9TH March last, the defendant fraudu-
lenlly induced the said Apahu to execute deed
/ Of the said premises: that Apahu was induced
/ to sign said deed only after repeated attempts
/ 10 persuade her To do SO, and she finally Yield
ed 10 the undue influence obthe 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
arcouu, Of past services, and Of an agreement
for future services; aud the petitioner alleges
that said cOnsiderationis neither good nor val
liable, and is insufficient to support the deed;
| that defendant has not in the past rendered
| any NAluAuic etINANt 70 AlAuu Aha AaS hoA
bound herself to do so in the future.
1t is submitted by the plaintiffs counsel, F.
NJ Hatch, that 40 valuable consideration is
shown, and affection will not support the deed
because the grantor is not related in any way
ui The grantee. That the conveyance must,
therefore, be considered settlement for the
use Of the grantOr during her life, remainder 10
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 nsighbor towards an aged
| friend Of her adopted mother. These are not
sufficient to support deed Of bargain and sale,
under the circumstances. The gTantor is n
Hawaiian lady Of over seventy years, suffering
from paralysis Of Der limbs Of some years
standing; her bodily condition is one Of great
! feeLlenrss, and many witnesses say that they
have observed times Of incoherency Of speech
indicating disordered intellect. The deed is
voluntary conveyance without power OF revo-
cation. The statements contained in the deed
expressing the nsideraIion, are the sum OF
81, the gran,or's affection for the grantee, on
account Of her havi,g cared for the grantor
=
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 addueed 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 attesting witnesses testify that they be-
lieye that she fully understood the transae-
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
sou was absent and did not learn Of the trans
action until after it was completed.
Mr. Dowselt says he reminded her Of her
sou and she said "Never mind that, wish the
land to go to the defendant as she will care for
me-"
1t seems TO me that this is voluntary con-
veyance to the use OF the gsantoT, remainder TO
defendant. For, the consideration OF future
support by grantee, sine not having bound her
self by any covenant, could not be enforced
except From the land, and think that it mast
mean that her support was chArgeable to the
land.
Let us see, if in the light of the authorities,
such conveyance can stand. have no doubt
that the highest Court of Great Britain would
set this conveyance aside.
See Couts Va. Ackworth, l.. Il. S Eq. SIS.
See Everett VS. Everett, l.. II. 10 Eq. i05.
See Hanley VS.. Pearson, L. r. 10 Eq. SIS
See Hall VS.. Hall, L. r. IA 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
anees.
In Along VS.. Along decided by me June 9th,
1854, 1 adopted the law Of Whey VS.. Roberts,
1909 Mass, 800, where it is laid down that "a
voluntary settlement completely executed,
without any circumstances tending to show
mental incapacity, mistake, fraud or undue in
fiuence, is binding and will be enforced against
the settler and his representatives, and cannot
be revoked, except so far as a power of reyo-
cation has been reserved in the deed Of settle
meut."
In the case before ne find old age, bodily
weakness, mental weakness amounting TO in-
capacity at times, and in addition an IMPROVE
deRt conveyance by which the grantor is i'm
mediately deprived Of her title 10 all her estate
Tor 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 itnmaterial from whence the
mental weakness arises. 1t may arise from
natural and permanent inibecility OF mind, or
il may arise from some temporary illness or.
debility, or from the weakness and inhrmity
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
pacity 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 he sustained"
In Sc Cal. 50 Moore Y. 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-
tion 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
Says Judge Field, in Allore Jewell, A u.
S. sill, at is not necessary, in order to
secure the aid Of Equity, to prove that the
deceased was at the time insane, or in such
state of mental imbecility as to render her
entirely incapable of executing valid deed.
1t is sufficient to show that, from her sickness
and infrmities she was at the time in CON
1ition Of great mental weakness, and that
there was gross inadequacy Of consideration
for the conveyance. From these circumstances,
imposition or undue Influence iriH 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.
I'm Hatch for plaintiff; E. Preston for
defendant.
Honolulu, July }, 1851.
Supreme Court OF the Hawaiian IslAads-- |
In Equity.
C. K. BISHOP AND ALBEIT JAEGKR, ASSIGN |
HEs IN BANKRUPTCY OF THos. b. WALKER, |
vs.. THBo. II. DAVIES s. Co.