The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-11-09

made in contemplation of death and deeds In will the
testato must leave others the wishes He is
obliged to substitute the discretion of another for his
If it is claimed that the deed question was to serve the
purpose of WILL the that it was not will and do not
believe In extending the doctrine of predatory trust Even
though the deed created predatory would conravene
the contention OF the real plaintiffs By the deed the relatives
within the second degree of conanguny would be the ess
que usdn but counsel for the plaintiffs rely upon paro
proof to establish the in their behalf with
Douglas H. Brown This directly contrary every principle
of law and equity 1t attempt written instrument
by parel proof which manifesy be done Perry on
Trusts Bird p 49, case there cited: Irvine a. S
tran, Law Rep. Eq. 673.
When parties have deliberately put their engagements into
writing in such terms import legal obligation, without any
uncertainty to the object of such
concusive presumed that the whole engagement parties
and the extent and their undertaking reduced
writing, and all oral testimony of previous cooqum between
the parties of conversation of declarations time when
1t was completed or afterwards, it would tend
stances to substitute and different
which really agreed upon, the prejudice possibly of one
of the parties rejected" Greeneaf Evil 18th Ed D. 321
Ihe writing it may be read by light of surround
ing circumstances in order perfectly understand
tent and meaning of the parties but they have
the writing to be the only outward and visible expression of their
meaning other cods are to be added substituted
its stead The duty of the such ascertain
what the parties have secretly intended conrastn-
gushed from what their words express but what the meaning
of the words they have used" Id 1922.
"The rule excludes only parol evidence of the
language of the parties contradctng varying adding that
which contained in the written instrument and this
they have themselves committed writing all which they
ed necessary give full expression their meaning and because
of the msce which would result if verbal testimony in such
received" Id. p. 32S.
The degrees of consanguny should computed according
to the common law but intended trust
uncertain under which rule the degrees computed
and for this the deed Smith imperative
to all of the heirs of Martha Swnton and
plaintiffs.
The real plaintiffs in the second place. contend that
predatory trust created the facts and circumstances show
constructive constructive under the cir
custances in this be established by actual Fraud there
element of constructive fraud involved If such exists
it rests entirely upon deliberate intent cheat and defraud
Martha Swnton when the deed signed To sustain this
enton the evidence should be clear and convincing Is Am
Eng Ency. of Law, 1895; Lantry Lantry, 81 ILL., ass
Instead of being convinced that there is actual fraud
contrary. real plaintiffs
the strongly their favor be put This what
they ayNow those whom she preferred is perfectly clear
from the evidence in the the five children already
mentioned that pretty clear that the time W. James
Smith called with reference the property Miss Swinon idea
still as had been for past that the property after her
death should her five nephews and niece cannot
brand a scomdrel upon any such theory That
prey clear, according the mind of counsel for the
real plaintiffs that Miss Swinons idea that the property
after her death should her five nephews and niece
sufficient 1t be clear Many things might have happened
between the time when she last spoke of her nieces and
nephews regard the NATTER and the execution of the deed
which about week. according the of the testimony
favorable the real plaintiffs Even if admitted that
the testimony for the real plaintiffs in this regard be would
not necessarily follow that Miss Swnton had changed her
mind She might recognized her ngatde towards Mr..
Smith, her end approaching and have been stricken
with being the recipient of his bounty for all those
twenyree years without recognizing him IN way at her
death She who had peculiar claims he1
but Mr. Smith. She greatly indebted him. and it
wonder that she should him. when she thought
she longer had for it. the property which he had
generously her She could that by giving it to her five
in all probability it would from him for
and why should they have M What had they done for he
counteraance and generosity Of Mr. Smith,
only towards towards the members of her family Unde
the circumstances he the natural object of her bounty
She believe that owing the almost paterna
he had shown for her nephew and nece he would
the property them such of them he thought
deserving when he should longer need it brin