The Hawaiian gazette., 1900-10-30
Supreme Courts
Decision In
Case.
VALUABLE LAND
IN CITY INVOLVED
Property Adjoining Queens Hos.
pitdl on Beretania
Street.

| The Supreme Court yesterday affirm
ID the judgment of the lower court in
| lie well known case OF Aldr.ch against
..assirger and the heirs of Marthl C..
aU iuton will receive the property in
..tigat.on. which is situated on the ma
ika side of Beretania street, walk kl of
lie Queens Hospital. BY the decree
". James Smith, the trustee was de-
Jared guilty of fraud In attempting to
secure for himself a good title to the
property. The case has been in the
courts since 1891 and it dragged on
from time to time until many of the
original parties were dead. Mrs. Mar
ha G. Swinton died in 1891 and before
Ter death she made a deed to the prop
,rty to Smith, who was her best and
most intimate friend intending him to
hold it in trust for her five nieces and
1ephews. After her death Smith laid
claim to the land.
The opinion is written by Justice Per-
~ and concurred in by Justice Gal
braith, but a dissenting opinion is filed
by j. A. Magoon, who was In place of
Chief Justice Frear who was disquali-
fed. The court says in the course of
the opinion which is Of considerable
length: I'VE are satisfied that the evil
dencc that at the time 1t was the inten-
ton of Mrs. Swinton to make last and
dnal disposition of her property tesla
what she at first desired. The
she had then in mind n Will or n deed
Is not perhaps, entirely clear, but the
circumstances of the case and the re
spondent's own evidence furnish strong
grounds for believing that will was
what she at first desided. The
evidence goes to show that Smith ad-
vised her against making n viii be-
cause of the cost of proceedings in pro-
bate and because of the poss bility of n
contest by relatives not provided for
in the will.
I'VE believe and find that 1t was the
desire of Martha C. Swinton at the time
she asked Smiths assistance in the
drawing up of the necessary instru-
mcnt that the whole beneficial owner
ship In the property should fass to her
rve nephews and nieces and that the
instrument to be drawn up should be
hut the means of accomplishing that
/ object"
! The court holds that Smith. taking
| advantage of Mrs. Swinton's great
! trust and confidence in him. fraudulent
| y Intending to obtain the absolute title
to the property for himself, persuaded
! her to sign a deed which he prepared
md which did not express the trust de-
sired by leading her to believe that he
would hold the property subject to tAat
trust and that he would carry out her
desired intention concerning the prop
! erty
/ Mr. Magoon's opinion holds that no
! trust could be construed to have eX-
| 'sted and he would award the property
! 20 the heirs OF Smith.
The attorneys in the case were Kin
0cy. Ballou & McClanaran and H. A.
I Bjgelow for the plaintiffs and Robert
| son and Wilder, w. q. Smith and A.
Lewis, Jr,, for the defendants.
TAN ASSESSOR LOSES.
! The Supreme Court in an opinion
X. X. Hind vs.. n. c. Wilfong. Tax AS
sessor. holds that where the valuation
alaced on property for taxation by the
! Tax Arreal Court is fair and just an
appeal by the Tax Assessor cannot lie,
Justice Galbraith writes the opinion
and it is concurred In by Chief Justice
| Frear and Justice Perry. 1t was an APP
veal from tie Tax Appeal Court of Ko-
| hala, Hawaii, by the Tax Assessor of
the district, The valuation of the Hawi
plantation at Kohala was returned by
II. r.. Hind Mt 1929 35l. and the Tax As
SCISSOR Increased this to S2975C0 The
Tax Appeal Court reduced this to s2'5,-
900, the same as the valuation for the
preceding year.
1t appeared that more land had been
acquired by the plantation, but also
that this lay ut n high level and that
the feasibility Of irrIEotng it was I'M
certain. 1t was likewise shown that
the yield of the plantation per acre had
decreased.
The appeal of the Tax Assessor is
dismissed ana the order placing val
untion on Hawi plantation at s265o0l Is
affirmed Kinney, Rallou & McClana-
! han appeared for the plantation and
Lorrin Andrews and c. s, Smith for the
| Tax Assessor.
! SUGAR COMPANY DEFEATED.
| In the case of the Ookala Sugar COM
/ many against John Wilson, the supreme
/ Court Yesterday rendered decision af-
/ fwtrr the underwent Of the JUDGE Of
/ ire First Circuit Court for tho defend
liant.
THE suit was mn action 20 assuuNs.t
20 recover am altered excess of rent
I wnuudug to sl975 Tho 4 rardmI
,'ansod tNa r'0WHT tho l0ni ~ tro dis
|trrt of I0unEu1 Ie'7rd or Hnwaf III.
: nu annual rn~tnI If ST per aero, THE