The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-13
kaho0kano's Heirs
Protected From
Fraud.
AUTHORITY TO
CONVEY IS DENIED
Decision of Court Refuse Hawa-
iian Trust and Investment
Cos. Its Request.


IN Trust anu Investment Company, Pc
itions for authority to convey real es-
ate, the Judge of the First Circuit
Court yesterday rendered decision, re-
using the authority petitioned for.
The following is the decision:
This is a petition filed by the Hawaii
an Trust and Investment Company as
guardian of the above named minors.
j. K. Kahookano, was seized and pos
sessed at the time of his decease, of
certain real estate in the petition de-
scribed; that said real estate was con-
veyed to said J. X. Kahookano by deeds
of Hoopi and Haaheo, dated May 10,
1899, and May IS, 1899, respectively, and
in each of said deeds the grantee, Ka-
hookano, is described as trustee but
the nature, character, term and dura-
ton of the trust, if any there be, is
not set forth; that the petitioner fully
believes from the representations OF the
Honolulu Plantation Company that said
Kahookano held no beneficial interest in
the aforesaid real property at the time
of his death but that ali the equitable
title thereto resided and now resides in
the Honolulu Plantation Company,
foreign corporation that petitioner be-
lieves that the Honolulu Plantation Com
pany advanced all the money used by
the said Kahookano, deceased, in pur-
chasing sad real estate, and that he
took title thereto as trustee temporarily,
in order not to prejudice the interests
of the said company in other contem-
plated purchases of neighboring land
that the legal title to said property is in
the above named minors as heirs-at-law
of said Kahookano. The petition further
alleges that the Honolulu Plantation
Company has filed it's bill of complaint
against the petitioner as guardian, and
it's wards above mentioned for the pur-
pose of having them declared naked
trustees of the above mentioned real
property for the use and benefit of the
said company and for the purpose of
having the same conveyed to it in &C
cordance with such trust; that the es-
tate of the minors is small and that
they are solely dependent thereon for
their support and education, and that
the petitioner desires to proceed with as
little expense to them, in reference to
the said matter and the said suit, as
possible. Petitioner then prays that if
the Court comes to the same belief that
it entertains,- that the said minors be
declared trustees of said property for
the use and benefit of the Honolulu
Plantation Company, and that petition
er. as guardian, be authorized to exc
cute conveyance Of the same to the
said company in fee simple.
When the petition was read I express
ed doubt as to my authority in a pro-
eeeding of this character to grant the
relief prayed, but stated that evidence
which the petitioner proposed to offer
might be received and that the entire
matter would be taken under advise
ment.
Counsel for petitioner then offered GER
tain documentary evidence, which taken
either separately or altogether, strongly
tends to show that Kahookano never at
any time acquired any beneficial inter-
est in the property mentioned, and that
through which the legal and the equi-
table title should flow to the Honolulu
Plantation Company. But it can matter
not how clear, certain, positive and con-
vincing testimony may be in a particu-
lar case, if the Court is without juris-
diction to hear and determine the res
lite. 1t would not make the slightest
difference that the testimony We're over
whelming, or even that the allegations
that of the declaration were confessed
in an assumpsit suit instituted in cham
Gerry, the Court would yet be without
jurisdiction to hear and determine and
any judgment which il might assume to
ly parallel with the Illustration given,
yet some of the underlying principles
are the same, and all that can be ex-
pected in any case is that the principle
be developed.
While satisfied beyond question that
the petitioner, guardian, in this matter
has acted in the utmost good faith, in
spired by the very commendable desire
to save its wards the cost and expense
Of defending a suit which, in its judg-
ment, they cannot defeat, 1 yet think
that any practice which tends to en-
courage the divesting of the apparent
legal title to real estate out of infants
and of vesting the same in another or
others, upon a purely ex parte and in
camera proceeding is not to be toIerat-
ed Such practice is, I believe, without
a precedent in chancery; and 1 am I'M
willing to pioneer in blazing trees or
making bride path which may at some
time in the future enable INSCRIPTIONS
or fmprudent guardians to easily reach
a highway in which. through collision
or lack of discretion, duty or want of
Judgment the real estate of their wards
may be vested in others without consid-
GRAFTON and without a contest. No de-
cree pro confesso can be rendered
against an infant, nor can an infant be
bound by any admission which he may
make In chancery.
ms is proposition which / have
never heard denied or questioned. and 1t
would seem to be equally true that an
infant cannot be bound by the aIlega-
tons contained in his complaint or petit
ton and particularly should this rule
prevail where the necessary effect of
such allegations is to divest him of title
to property.
Every proceeding to divest an infant Of
property to which he has the apparent
legal title should he traated 90 hostile
Observation-Disclosures juris-and no
intendments or presumption should be
INDUCED by the Court against the In
fant's rights.
'There is nothing which Is better CAL
culated to develop the real facts In
case than contest in a court of Justice
conducted in an aggressive manner with
both parties constantly on their mettle,
and such contest Is to be encouraged
and invited where the property interests
Of minor are at stake. While this pro-
ceedng would divest the Kahookano mi