The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-24
OPINION OF THE COURT BY JUDD
G.. ]. Frear, J., dissenting).

OPINION OF THE COURT BY JUDD,
c. ]. (Frear, J., dissenting).
At the term of this Court held in
September, 1895, in overruling a de-
murrer we decided many points of law
raised and sent the case back to the
Circuit Court, First Circuit, for trial.
The case came on for trial in Deem
Der last before Circuit Judge Magoon,
jury being waived, who, on January
18th last. filed his decision disallowing
the principal sum sued for, but giving
Judgment for the annual payments
stipulated to be in lieu of interest. The
contract sued upon is an agreement in
writing. made in 1882, between the late
Doctor Trousseau and the plaintiff, who
was alleged to be his separated wife, y
by which Doctor Trousseau defend
ants decedent) admitted as absolutely
correct the claims and demands proved
by Madame Trousseau on the 18th
March, 1882, amounting to 150,8
francs and 80 confines, of which he en-
gagged to pay Immediately 20, 600 francs,
and also on the LIST January of each year
thereafter, beginning January /, 1884,
a sum equal TO 5000 francs to be re-
mitted by the French Consul to Madame
Trousseau, in Paris, and to be regarded
as interest on the capital remaining of
130,S65 francs and so confines. Mons
TrOusSeau then engaged, If his cir
cumstances allow and as soon as they
allow him, to discharge the total
amount OF his debt to Madame Trous-
seau, by paying over TO her the capital
which viii remain due to her" There
is also a provision that ''as soon as
~ 81 ~
the annual sum of 5000 francs settled
as above will decrease in proportion as
the total debt is eXtinguished," &c.
Another provision is that as soon as
the first installment of 10000 francs is
paid Madame Trousseau was to discon-
tinue a case then pending in our Court
against Doctor Trousseau for larger
amount. (This sum was paid and the
case was discontinued) The last pro-
vision is that the articles of agreement
should be performed in good faith by
both parties, and in the event of non !
payment of any of the sums mentioned /
at the date when it falls due, Madame /!
TrOusSeau will be at liberty to renew /
proceedings upon the mere information !
which shall have been given to her by /
the French Consul at Honolulu that /
the sum of money has not been paid at /
the date when it falls due. (The agree /
ment is set out in full in Trousseau V. /
TrousSeau, 10 Haw. - The annual !
payments of 5000 francs were regular /
ly made until LIST January. 1894 but |
none was paid thereafter, and no part |
of the principal was paid by Doctor /
TrOusseau during his lifetime.
In order to sustain the conditional /
promise of DR.. TrOusseau that he would .
pay the principal sum eff his circum- /
stances allowed him and as soon as
they allowed him." the plaintiff intro .
duced as evidence of his ability to pay
the principal sum sued for. which re-
duced from francs to dollars is SIG. 173. /
his last will and testament, executed /
March 8, 1894, wherein he devised all |
ms property TO one Makanoe native !
woman, in which he declares: at die |
poor, and am only sorry for her sake, /
as L never had any love for money and /
Arrays had enough" There was also
introduced in evidence the executors /
inventory of the decedent's property, /
showing the liabilities (Secured by /
mortgage and Otherwise) to be $19.- |
S43.61. and the property, real and per-
sOnal. estimated by the executors to be /
worth $35.91401. which would leave the .
the decedent's property is put by the
executors at S62, 317.S3, but they esti-
mate the actual value to be, as stated.
S35. 914O1
The trial Court held that. as it was
extremely uncertain whether an estate
will realize the expectation of an ex-
ecutor entertained several months be-
fore the assets have been turned into
cash, he could not give decision
based upon such testimony. and there
fore declined to find for the plaintiff
the principal sum, but allowed the ar
rears of the yearly instaIlments of 5 900
francs, the sum of S115S.16 it's pay
ment not being conditioned upon ability
to pay. The plaintiff excerpts to the
finding Of the Court in disallowing the
sum. In reviewing this case
we remark that the trial Court was
right in holding that the promise of
DR.. Trousseau to pay the principal was
not absolute, but was conditioned upon
his circumstances allowing him to pay
1t, and that ability to pay must be
shown as prerequisite to recovery
But II seems to us that the trial Court /
proceeded upon the theory that the
test OF the ability of promissor. who
has died, to pay is the amount of as
sets which he may happen to leave at
his death. This is not the test. The
plaintiff must show that the promis-
sor's circumstances allowed him to paw.
Certainly the existence Of clear. assets.
over all liabilities, sufficient to dis
charge the whole amount, would be
evidence, but the converse is not true.