The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-05-28
3aluaiialr Gazttte.
WEDNESDAY, NAY Is. Issl.
Supreme Court of the Hawaiian Islands
In Equity.
EDMOND AND EDWIN HART VS.. He'll Kart
ET. AL
B.tore Austin J. Opinion Of he Court.

OsJVIe dNefth Js DpillON o. fhf tOhIf.
This is an action in equity for an accounting
by defendants as representatives Of Kaluapi-
haole deceased, for balance of the rents and
profits of the fish pond of Kupeke, in Molokai,
and other property which the bill alleges de-
ceased had in charge as plaintiffs trustee for
three years or more from and after August,
1878. The bill AYERS fraud and failure prop
erly to account.
The answer denies fraud and trust, and
alleges accounting in full to Mesnui, the mother
of plaintiffs. Kaluapihaole and Meanui, who
best knew the facts in the case are dead
The evidence on both sides is indefinite and
| unsatisfactory, No books or memoranda of
accounts are presented by either party. The
answer of the administrator alleges that book
of accounts of the receipts and expenses of the
| fish pond were kept by Kaluapihaole, but that
after his decease it was stolen from his house.
The proofs slow that Henry Hart the
father of the plaintiffs by Meanui, who
were his illegitimate children, had lease of
the fish pond of Kupeke and appurtenances
| for ten years, expiring Oct. End, 1851. That
on January %, 1873, he granted it and other
property TO Auwaelua and his successors in
| trust for the use of Meanui and the plaintiffs.
Auwaelua died about June, 1878, and the
proofs show. as l think, that Kaluapibaole de-
ceased took charge of the fish pond and some
| other property, about Oct. 2, 1881. All of his
dealings about the pond were with Meanui
she was living in Honolulu, and the plaintiffs
lived with her. Two or three letters purport-
ing to be from Kaluapihaole to Meanui are pro-
duced. They bear, think, internal evidence
of genuineness.
A paper dated December, 1878, running to
Kaluaphaole whereby lie was stated to be
1
1t was delivered to Meanui at Honolulu, and
she at about its date went to Molokai with it.
There is no proof that it was delivered to Ka-
luapihaole But from expressions in his let
tiers and from the acts of parties, and all the
evidence in the case, l think there is enough
| to show that kaluapihaOle should account
a trustee to the plaintiffs in this case, and |
shall 80 find. See Perry nn Trusts, Sec. 2i5.
| | shall also find from all the proofs that pay
ments were properly made to Meanui. She
was the mother of the plaintiffs, and they we're
living with her at Honolulu. Kaluapihaole
was at Molokai. Expenditures for them would
properly be made by her as their natural
guardian. The proofs Of her bad habits we're
not enough 10 stamp the payments as made in
Bad faith
As to the proceeds of the use of the fish
pond, we have no book of account to guide US,
and must resort to general evidence by those
acquainted with it, 1t is referred to as one Of
the best ponds on the islands. Many witnesses
were sworn, and from their testimony the pro-
ceeds can only very indefinitely be determined.
shall not rehearse the proofs. The plaintiffs
claim that the sales from the pond were almost
weekly during tho whole time and amounted
to about $50 week. l think the proof does
not sustain this. Some of the witnesses say
that probably fish were sold from the pond
once week about half the time. think this
approxmates the truth. The proof shows that
Kaluapilaole had other ponds and got fish
from other sources which he sold. The proof
also shows that after he got Kupeke he in
vested about $4,000. For each time, from the
proofs, l think the receipts above expenses,
aside from the value Of Kaluapihaole's services,
were, on an average, about forty dollars a
week: The whole time was three years. One
half of the time was one and half years or
seventy eight weeks. This makes the gross
receipts S3,l20, for this sum the defendant
Kapu, as administrator must account
Out of this must come first the payments
OF payments and Of the expenses, the trustee
should keep accurate books of account. If not
every intendment of fact will be made against
him.
See Perry on Trusts, Sec. oil.
The defendants say that books Of account
were kept by Kaluapihaole but they were
stolen after his death. This explanation is not
very satisfactory. The defendant Kapu says
he was at the house of deceased week and
a half after his death and found no papers nor
letters nor account book. 1t is strange what
became of them all Several witnesses were
sworn as to many payments 10 Meanui, but not
receipt or a scrap Of paper showing the
amount of any payment is presented. This is
remarkable. The amount of many payments
are not remembered by the witnesses. This
uncertainty, think must be taken in meas
ure against the defendants.
| Nakumu swears that he paid Meanui not
more than 81 900, nor less than $780, He pro-
duces no receipt or memorandum. L shall call
this payment $500. Including with this sum,
actual amounts proved L make one thousand
and thirty-four dollars of payments. Many
other payments are sworn to, but the witnesses
do not know the amounts.
| Kaluapihaole acknowledges in his letter Of
December, 1879, that he had from Meanui
loan of four hundred dollars which he claims
to have returned in full, including one hundred
dollars then enclosed. Most of the payments
shown were after this time, some sent before
may have been upon it.
For all of the pay ments unknown in amount
| it will be fair TO allow two hundred dollars
This makes, to be allowed as payments
twelve hundred and thirty-four dollars. The
defendants must be allowed the rent, $500.
Repairs of fish pond. 500.
The trustee must also be allowed reason
able price for his services. He was placed in
possession as manager of an estate. AS such
he should be allowed all proper expenses 10
keep up the estate, and his personal work was
constantly required. The better rule now is
that trustees should be allowed reasonable
compensation for their time and trouble.
| See Perry on Trusts, Sec. 9l3 and OH.
| The proof showed that KaIupihaole Uccu-
pied the dwelling house and grounds at Kupeke
fish pond. He had also other fish ponds which
he worked in whole or in part.
There was proof that half the net proceeds
would be proper pay TO an agent running a
pond, but l think that would be too much to
the trustee here. He had however important
and constant duties 10 attend to and | shall
allow him five dollars a week for the whole
time he was in charge or seven hundred and
eighty dollars.
The estate of Kaluapihaole is chargeable
with So, 100, and is to be allowed for expences,
payments and his services S25l4, which leaves
a balance due plaintiffs of six hundred and six
dollars, for which sum with interest from jan
uary LIST, 1882, the plaintiffs may have de-
cree with costs.
Honolulu, May l2lh, 1884.