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

evidence of his inability TO pay during
his lifetime.
In discussing the question whether
the evidence adduced shows ability &c
pay during the lifetime Of DR.. GTous-
seau, we must remember that he de-
clared in the agreement that he owed
| the principal sum; that he promised tC
perform the agreement in good faith
| and that he would pay the principal
rs SODH as his circumstances would al
low him to do so. The agreement con-
! templates payment by Doctor Trous-
seau Of the principal by installments.
! provision being made for the proper
/ tional reduction of the yearly payment
! of 5000 francs, as soon as the capital
| sum was reduced to 100, 900 francs at
! the rate of > per cent. Whenever the
| principal debt should be paid the inter-
est would cease, it having been re-
! duced proportionately as the principal
was reduced. Another expression in
| the agreement SUBSTANCES the view that
partial payments by Doctor Trousseau
were contemplated. 1t is in the latter
part of the first clause of Article 4,
where he engages, if his circumstances
allow him, &c, ito discharge the total
amount of his debt to Madame Trous-
| seau, by paying over to her the capital
lChich iriH remain due to her" These
words which will remain due to her"
would be unnecessary and meaningless
unless it was contemplated that the
principal was to be reduced from time
to time as the Doctor was able to make
payments. Nowhere in the agreement
do we find an expression that implies
that the decedent's circumstances must
allow him to pay the principal sum in
full at one time, or he be freed from the
obligation to pay it at all. A person
having made such a promise, if con-
strued the other way, could easily de-
feat his liability by expanding his
money or giving it away as fast as he
received it, in order never to have
enough on hand to pay the debt in it's
entirety.
Now, good faith" would require
that where the decedent earned and re-
ceived sums of money over and above
the reasonable expenses of living of a
man in his position, he should apply it
to the discharge of this obligation. That
he was in receipt of money over and
above his reasonable expenses is evil
denced by the inventory on file, where,
for instance, S10,974 were shown to
have been expended by him in the pur-
chase of % ostriches for 1850, and the
remainder of this sum in buildings and
other equipments of an Ostrich farm.
To say the least, the investing of over
$4,000 in a new and hazardous enter
prise is some evidence that DR.. Trous-
seau's circumstances admitted of his
paying at that time something on &C
count Of the debt ne owed Madame
Trousseau.
ifpTO in the ic,l
Boat House Property So, 075 |
and consisting of a steam launch, a |
catamaran, two other boats and a nap
tina whaleboat. By the will of DR. |
Trousseau it appears that he was pay
ing $25 per month for rent of boat |
house and wages of boat keeper. In
diligence in the pleasures of boat sail
ing, while perfectly proper il a person
owing no debts, was inconsistent with /
his obligations under the agreement
and is evidence of his ability to dis
charge a portion of his debt under the
agreement equal to the amount expend-
ed on these amusements
The will of DR.. Trousseau declares
that he always had enough An in
ference from this language would be
that he always had enough with which
to discharge his obligations and live
but from the whole con
text of the will we cannot find that he
to have this inference drawn
from this language. The will was
drafted by himself and was apparently
not carefully studied. Other express
sions in the will however, as when he
directs his executors 'to oppose abso-
lute1y any interference from the French
Consulate in my affairs. [ am a Ha-
waiian subject and I wish to dispose of
my property according TO Hawaiian
law" and, leaving his property to the
person above stated, latter all my law
full debts in Honolulu are paid" indicate
that the comparatively small amount of
assets which were left after his debts
were paid is no indication that his cir
cumstances would not have allowed
him to discharge the obligation to
Madame TrOusseau, but rather that he,
being able, was not disposed to do so.
He was not by the agreement to be the
Judge as to whether his circumstances
allowed him TO pay the obligation in
question.
It seems to us that the trial Judge
did not give adequate weight to these
In our minds, this evil
1ence. it not being contradicted by the
defendants, is evidence that the cir
of defendants decedent ad-
mitted of his paying since the making
Of the agreement. during his lifetime,
Of the principal sum or some part of it.
Now. proof of ability to pay part of
the principal sum would be a fulfill
nent of the condition in the agreement
to pay. and this being shown to the
of the Court. would war
'ant judgment for the whole amount
and if the property of the decedent be
insufficient to discharge it and the other
lebts in full, both it and they will have
20 be paid pro rata by the executors.
reating the estate as insolvent.
1t seems to us that the agreement
obliged the decedent to make payments
On account of the principal sum from
lime to time as his circumstances al
lowed him. and that the evidence ad-
1uced by the plaintiff tended to show