The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-05-01
HSEs DOWN DECREE
Of CIRCUIT JUDGE
J. A. Magoon Comes
Out Somewhat
Ahead.
TWO SUPREME COURT OPINIONS
JUDGMENT OF DISTRICT JUDGE
or NoRTH koNA FOUND
ERRONEOUS
TWO SUPREME COURT OPINIONS
Trial of Mist VS.. kspiolani Estate
Begun-kppeais From TWO Dis
triet courts-Pesition for License
Deferred.

A unanimous opinion of the Su-
preme Court has been filed in the
matter of the estate OF Alma, deceas-
ed. It is an appeal from a decree OF
q Circuit Judge OF the First Circuit
in probate, disallowing the commits
sions of an administrator amounting
10 S243.4O and charging him with a
masters fee of SIS. The opinion is
written by Justice Perry.
J. A. Magoon was appointed admin
istrator with the viii annexed of the
estate of Alma on November 90, 1886,
and qualified as such on December I
following. On December 10. 1900. no
accounts having in the meantime been
filed one of the legatees filed motion
that the administrator be ordered TO
file his accounts. The accounts were
filed the same day and thereafter re
ferred to a master. who in due time
made report calling attention to the
omission of notice to creditors, the
absence of vouchers for certain pay
ments, etc.
Thereupon the Circuit Judge signed
a decree ordering the administrator to
make publication of notice to credit
ors. disallowing the item of s243.40
commissions credited TO himself and
charging him with SIS as masters fee.
In examining the facts the Supreme
Court finds that no objections were
made to the accounts or exceptions
taken to the masters report by the
legatees. The master does not find
that the untouched payments were
not made. In conclusion. the decree
is reversed and the case remanded
to the Circuit Judge for such further
proceedings as may be necessary in
conformity with the opinion. The
gist of the decision is given in the
following syllabus:
Where an administrator has not
faithfully performed the duties of his
trust, his commissions may be dis
allowed either as whole or in part,
according to the circumstances of this
case
Under the circumstances stated in
the opinion, disallowance of all of
the administrators commissions held
unjustifable; a disallowance of $50
out of the total commission of S243.4 40,
ordered.
"A reasonable masters fee, the
payment of which is made necessary
by the default of the administrator
may properly be charged against such
administrator as a part of the ex-
penses of the litigation
Under the circumstances of this
case. an allowance of SIS to a master
as his fee. held excessive; a fee of
s25 allowed"
Magoon & Thompson for the admin
istrator; w. W. Thayer for the lega-
tees.
The unanimous opinion of the SUI
preme Court. written by Justice Per-
~, in Hawaii Land Co.. Ltd, VS.. Nettie
L. Scott. was on an appeal from the
District Court of North Kona. Hawaii.
Plaintiff claimed summary possession
of six shares in the hui land of Ho-
lualoa and 2, its declaration saying
that the premises were held by de-
PENDANT unlawfully and against the
rights of plaintiff. It was declared
that defendant held the shares by vir-
tue of a lease made between D. Ka-
hao attorney in fact for S. H. Petero
alias s. H. P Kalawaiaopuna, and the
defendant.
Defendant demurred on the ground
that the complaint did not set forth
facts sufficient to maintain an action.
She also filed a plea to the jurisdic-
ton. Both the demurrer and the plea
were overruled and. after further pro
eeedings, Judgment was rendered for
plaintiff
Defendant appealed TO the Supreme
| Court on law points One was that
the magistrate erred in admitting
evidence to establish facts not aver
red in the complaint. Another point
taken was that where documentary
evidence was taken BY copy the mag
istrate erred in admitting it without
Identification on certificate that il
was a copy.
The Supreme Court finds that the
demurrer should have been sustained
SAYING the declaration was defective
in several particulars. The action was
evidently intended as one for the sum
mary possession of land. under Chap.
ter loo of the Civil Laws of 1897: but
the plaintiff had not averred sufficient
facts to obtain the relief prayed for
or to give the District Court juris-
diction.
The case is remanded to the Districi
Court for such further proceedings as
may be proper in conformity with this
opinion The only point of law given
in the syllabus is the following:
In the declaration in an action tc
recover summary possession OF land
brought under Sections 1879 and 1856
Of the Civil Laws. II is necessary tc
allege that the relation Of landlord
and tenant exists or has existed be
tween the parties. how such tenancy
was created. whether By lease or BY
parole. and how Il terminated. wheth
er hy efflux Of time or by reason Of a
forfeiture. or By statutory notice t.
/ quit