The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-24
DISSENTING OPINION
OF FREAR, J.

7 respectfully dissent The Circuit
Court, Jury waived, found for the plain
| tiff for the interest, and against the
plaintiff for the principal sum sued for.
| The plaintiff excepted ''to the refusal
of the Court to find for her or to order
| Judgment for her for the principal sum
| of S26, 173 claimed by her in her dec
Iaration. and to the ruling of the Court
that the evidence failed to authorize
such finding and judgment" She then
moved that in place of the judgment
ordered for her for the interest, judg-
ment be entered for the full sum of the
principal and interest on the following
grounds:
! 81 Decedent's will, which is in evil
! dence is prima facie evidence that his
circumstances allowed him during his
lifetime to pay said principal sum.
90. Defendants inventory, which is
in evidence, is prima facie evidence that
decedent's estate allowed defendants to
pay said principal sum.
80. Defendants by their plea of gen
eral issue, have admitted assets, and ore
thereby precluded from claiming any
benefit from the testator's conditional
promise, or that they have not assets
with which to pay the principal sum.
pay all the decedent's legal obligations
pro rata, except preferred debts, if the
estate is insufficient to pay them all in
full The principal sum here claimed,
as acknowledged by decedent in the
agreement declared on was due and
owing by him to the plaintiff. The ne
cessity of winding up the decedent's
estate, the statute of limitations Of
claims against the estates of persons
deceased dispense with and do not re
quire nor permit the pOstpOnement 0L
plaintiffs claim until it shall appel
that after all other claims have heea
paid in full there shall remain sIIf-
ficient property wherewith to satisfy
the PLAINTIFFS claim
This motion was denied and the
plaintiff excepted TO the denial.
These are the only exceptions brought
here by this bill PLAINTIFFS counsel
states in his brief that the second ex-
ceptiOn fto the denial OF the mC;ion
for judgment) is practically tho same
as the first exception Ito the refusal
to find for the plaintiff FOR the principal
sum, and to the ruling that tho evil
dence failed to authorize such IindinG).
1t will, therefore, be necessary to con-
slider only the points raised Specifically
by the second exception. These are
four in number I will first ton1n upon
the third and fourth points-which are
not referred to by the majority of the
Court.
The argument on the third point is
that the executors, in order to avail
themselves of the defense of ''RlIId
bond' or of "pTene GdiatRistrdUit," should
have set it up by special plea Without
expressing an opinion as to whether
these defenses, to be available, should
be specially pleaded under our starute
or practice, it is sufficient to say that in
this instance the executors do not rely
on either of these defenses. The plain
tiff declared on a conditional pr mise, |
namely, DR. Trousseau's promise to pay
a sum of money if and as soon as bis
circumstances allow it, and alleged full
fillment Of the condition. A general de-
NAL was a sufficient traverse Of the al
legation of the fulffllment of the con
dition, and the burden was on the plain
tiff to sustain the allegation. The fact
that the condition happened to be the
possession of sufficient assets l,y the |
decedent did not make it different from |
any other condition precedent, the full |
fillment of which must be shown. The |
defense relied on was not the dffirma-
tive one of "RuIId bona" but a mere de-
NAL of the truth of a necessary allega- |
ton made by the plaintiff.
The argument on the fourth point is |
substantially that DR.. Trousseau's |
death, by rendering impossible the full |
fillment of the condition precedent. !
makes it unnecessary to prove fulfill |
ment; in other words, that he coli
ditional promise became absolute upon |
his death. A promise % pay sum of |
money upon the happening of an uncer-
tain event, and which remains cC n |
ditiOnal so long as there is doubt |
whether the event will ever happen, |
does not become absolute when it be
comes certain that the event will never |
happen. IN re Bethel, L. R. "a CHI |
Div. SCI, was a case similar to this. |
in which the action was brought after |
the death of the promisOr, but rbe |
Court held that proof must DO made J