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

relatives within the second degree of consaneunit as
The instrument in question is in form an absolute
habendum, 'to the said w James Smith his heirs and With
his and their and behoof forever Then follows ~
'But it is my wish that the said premises NAV at oil e
available for a homestead place of dwelling for s be
my blood relations of within the second degree Of
ity to in the discretion of the said W. James Smith
whom he shall appoint by deed will for the purn T nm
depreciation of the degrees of consangunity to be t
Blackstone" HF
The questions which present themselves for det;
are hrs whether or not the facts and circumstances ~
the execution of the deed such as to charo tb
conveyed with constructive trust and second w[etb
the language of the deed itself il such as to create
trust 9
The contention of counsel for the present respondor
the evidence adduced fails show that the deed was
fraud under other circumstances such as will Justify M
in declaring that constructive exists and that the ap
Of the deed wholly insufficient precatorv trn
the compliments the opposite urged on both snb
Undlspued evidence shows that Martha c. Swnton was -
the time OF the execution of the deed July 2S 1891 and
least two three weeks prior thereto had been erievo II
About two weeks prior the date named he realizing that m
end was near and desiring to make final disposition of her iron
ery which consisted solely of the piece of land now in m
troversy and few articles of personality for W Smith
who admitted her trusted friend and adviser m
between whom and herself confidential relations existed 70
assist her IN carrying out her purpose Smith called on Martha
as requested and an interview followed between the two Re-
tween the time of that first interview and date of the ~
ton of the deed Smith called Martha several times and ON
each of these occasions likewise the first interview no one
else present
We satisfied from the evidence that at that time II was
Marthas intention and desire make last and final dt
of her property testamentary its character Whether she then
had in mnda will deed not perhaps entirely clear Init
the circumstances of the and the respondents own evidence
furnish strong ground for believing that will what she first
desired ohe had often tor long time past and during the
period OF her last illness talked of leaving her property
death to certain persons he question of benecares will
hereafter referred toy and the usual and ordinary method of m
disposition is by will Moreover the evidence shows that Smith
advised her against making will because of the of proceed
ngs probate and because of the possibility of contest by
relatives provided for in the will There would have been
no necessity for this advice if she had suggested will The
subject certainly discussed See evidence of
Smith, Sc: 90 She spoke of the uncertainty of establishing
will! A. Yes, while the question of litigation
arises there of her relatives who might have been
ing that would bring suit in sometimes O. that that qu
ton canvassed in her mind! A. She have been think
ing herself she only mentioned the will the first and
then she dropped the idea O. She adopted the deed then
urer method OF giving the property those whom she preferred!
A. That is the understood it. that what she meant
The thought of WILL then, having been abandoned and
we believe by of the advice given by Smith, Martha
use Smiths words adopted the deed the method Of
giving property those whom preferred But had
in mind absolute deed granting the whole beneficial well
the legal ownership Smith, did she desire simply
sute him trustee to hold the property for the benefit of Others!
We believe from the evidence that the The
testimony adduced for the compliments shows clearly that
Martha had often expressed her intention of leaving her death
the property in question her nephews and three ne
and satisfied that fact her leave it
Even after the conversation had 10y her with Smith which the
subject OF disposal of the property discussed she said to
of
wished Mr. Smith would hurry with the deed he kept putting
off and she afraid would be late and then she went
to explain what it for the deed she leaving Mr.
Smith in for Children, (by the chidren Martha
meant the evidence shows her five nieces and nephew and
Mrs Harry Swinton, presence of Mrs Adrich she said thai
he thought the place would be left all right Mr. Smith was
going to make deed of and leave the five
children"
Smith, true, while the stand denied
toto That he held the legal title capacity and claimed
that the deed intended absolute conveyance him. but
the truth of these assertions amply dsproven By his oa