The Hawaiian gazette., 1888-08-21

intention" Adams Equity, Sec. 80,
says, Resulting trusts. where the
intention to sever the legal and
equitable ownershipis apparent from
the attendant circumstances, occur
where the estate has been purchased
in the name of one person and
the purchase money or considers
ton has proceeded from another.
In this case the presumption of law
is, that the party paying for the
estate intended it for his own benefit
and that the nominal purchaser is a
mere trustee"
But it is commended that las re
sulting trust may be shown by parol
proof, as presumption of law arts
ing out of the transaction, so the
presumption may be rebutted by
parol proof. showing that no trust
was intended by the parties and that
it was the intention to confer the
beneficial interest upon the supposed
nominal purchaser Perry, Sec. 139.
The same Section reads further, "As
the resulting trust is mere matter
of equitable presumption il may be
rebutted by facts that negative the
presumption; and whatever facts APP
pear tending TO prove that it was in
tended that the nominal purchaser
should take the beneficial interest as
well as the legal title, negatives the
presumption"
1t must also be borne in mind that
the presumption is III favor of the
trust resulting to the party paying
the consideration, and the burden of
proof is upon the mere nominal pur-
chaser to show that he was intended
TO have some beneficial interest" Id.
Although there is evidence that
Queen Emma contributed to the sup
port of Pahau, from the time of Kama
mas death until she received her
share Of his estate, one witness testi-
fying to the sum of $40 per month,
there is no explicit evidence that this
support was the reason why the deed
was put in Queen Emma's name and
was to stand as its consideration.
On the contrary, Mr.. Brown and
Miss Peabody, the only witnesses
who testify as to Pahau's declarations
made at the time the deeds were
made, say that the reason that I Queen
Emma's name was placed IN the deeds
was in order that Pahau's husband
might have nothing to do with the
land.
The contribution by q chief of
these islands towards the support Of
q retainer is nothing unusual, and
the Queen might well have supported
Pahsu without the expectation of re
ceiving the conveyance of this land.
1t is not claimed by the respond
ent that this purchase and convey
ance were intended to be an ad-
vancement to Queen Emma. The
presumption OF an advancement
arises when the purchaser takes the
conveyance in the name of a wife,
child or other person for whom he is
under some natural, moral or legal
obligation TO provide" Perry, See.
14S.
There was no such obligation on
the part OF Pahau. She was not
bound to provide for Queen Emma.
On the contrary, the obligation, if
any, was on the part of the Queen to
provide for her retainer.
l am aware OF the feeling of obi
CATION entertained by some Of the old
HaHaiians to leave their property to
their Aliis, but this is q purely vol
consequence OF loyal respect
and fsalty, and Is not an obligation
that the courts could recognize as
binding, or one that should be ia
vored as against heirs at law.
To my mind these circumstances
do not rebut the presumption that
Pahau intended the Queen to be her
trustee
The fact that the nominal pur-
chaser IQueen Emma is dead does
not affect the admissibility Of parole
testimony to show the resulting trust
Perry, Sec. 138.
Nor does the fact that Pahau Is
dead affect the right Of her heir at
Law to bring this bill Although the
collateral purpose for which the con
veyauces were made, was to prevent
the exercise OF the present plaintiff
as Pahau's husband Of his marital
rights over this property, and this
purpose would apparently be de-
feated, by finding that the trust re
suited II favor Of Pahau, this husband
being now her heir at law, Pshau's
intention was that she, and lot
Queen Emma having advanced the
purchase money. was TO be benefited
by the transaction, and the incident
that On her death her husband Is her
sole heir, IS one that the respondent
representing Queen Emma's estate,
cannot take advantage Of
Upon the whole case l find that
e trust has resulted IN favor OF Pahau,
and the plaintiff as an heir may
have the relief prayed for
Decree accordingly.
The learned Justice makes the fol