The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-09-26
A COURT DECISION
Continued from Page ID


wife'S interest in the land in her own
right and not of her interest as bene-
ficlary under the trust deed; that he
saw and read the deed of trust at that
time; that we understood that she
was selling her own one-half interest
III the property without expecting to
get any income or interest back out of
that one-half interest, but without ref
eTence TO any right she might have to
any income out of Uwini'S interest. .
When l read clause in deed | sup
posed it left property subject to the
trusts as to the Aud girls, because /
did not know then that my wife was
named as a beneficiary in the deed
Later, when | ascertained that my
wife was SO named | thought the
clause ought to be construed as apply
ing the income to her, too
On this respondents own statement.
then, the deed should be reformed so
far as to free Mrs. Iaukea's inherited
interest in the property released from
any trust in her favor, for as the ha-
bendum now reads that inherited in
terest, too, is subject to all of the
trusts declared in Uwini's deed.
Mr.. Browns testimony, on the other
recollection clear and certain, that it
was the intention and understanding
of the respondents, as we'll as of the
trustee and himself, that from and af-
ter the date of exchange of releases
and payment of the $1,7OO, additional
consideration, respondents were to
have absolutely no interest of any ma
ture whatsoever in the property named
in their deed of December 6, 1873, and
that the wording of the habendum,
through mistake on his part, is erro-
neOuS and does not correctly state the
intention of the parties. This witness,
as already stated, drew the deeds, and,
with the two respondents and the truS-
tee, was present when the whole mat
ter of the pending settlement was
talked over and an agreement arrived
at. His statement of the facts seems
to me TO be the more reasonable and
probable one under all the circum-
stances of the case, and is very great
ly strengthened by the course of con-
duct of the respondents in failing to
make, for a period of about twenty
years next ensuing, any claim or sug
gestion that they or either of them
had any beneficial interest remaining
in the property. Adequate compenSa-
ton, as l believe from the evidence,
was given Mrs. Iaukea for the entire
and absolute REIMBURSEMENT by her of
all her interest, as beneficiary or 9TH
erwise, in the property named in the
release of December g. 1873
The facts cited and arguments adj
vanced in his brief by counsel for re-
spOndeDts have been carefully weighed
and considered. l believe, upon all the
evidence, however and find, that it
was the intention and understanding of
the parties at the time that the re-
SpOndentS were releasing all of their
interest, whether beneficial or equitable
or otherwise, in the premises situate
at the corner of Nuuanu and Hotel
streets, r. P. 1116, l.. G. A. 4S, to Ka
hanaumaikai, and in apanas 1 and of
r. P. 1910 l.. G. A. 1899 to Wahineka-
pu, to A. J. Cartwright upon the trusts
named in the deed from Uwini other
than those therein expressed in favor
of Mrs. Iaukea. In my opinion, the
deed in question should be reformed
so as to correctly express and carry
out this intention and understanding.
The land at KamanuWai, on Nuuanu
street, above Beretania, referred to in
the bill of complaint, was expressly
and purposely omitted from the Oper-
alton of the agreement Of November
%, 1878, and of the release of Deem
Der g. 1878, the parties desiring at the
time to leave open for future determi-
nation the question of their rights in
said property. This was conceded at
the hearing by counsel for the COM
plainants. The prayer of the COM
plant, so far as it seeks reformation
of the deed with reference to this piece
of property, is denied.
The question of whether or not Mrs.
Iaukea is now entitled as benefi-
ciary under Uwini's deed or otherwise
to share of the income from the per-
sonal property transferred to the trus-
tee under and by that deed and to COM
pei the trustee to account for the same
is not now passed upon, but is Specifi-
cally left open to be contested hereaft-
er in such proper proceedings as have
been or may be instituted for the pur-
pose. The bill in this case does moi
appear to have been framed with the
purpose of seeking relief in this re-
spect nor was the matter treated by
counsel at the hearing as being il is
sue; nor does the present state OF the
evidence justify consideration of the
subject.
A decree in accordance with the fore
going views will be signed on presen
tation.