Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-06-02
FITCH RESUMES FIGHT
PETITIONS FOX REHEARING
OF SPENDTHRlFl CASE
Explains in Affidavit His Bargain
With Kalua KapukiDi-- His Share
Would Be Only One Tenth
Of Estate.

Kapukini, a spendtnrlit, has filed a
motion in the Supreme Court for re-
hearing The petitions that the deci'
sen heretofore rendered he vacated
on the ground that II was made upon
certain alleged newly discovered evi'
uenCe, in the form of trust deed exc
Cuted after the rendition Of the judg'
ment, and no opportunity was accord.
ed him to offer evidence contradicting
or explaining said trust deed. The mat.
ter came to a hearing, MIR. Fitch says
while he was absent in California and
MIR. Fleming, who argued the case in
his stead, was not fully aware Of the
facts set forth in the affidavit annexed
to this petition.
In his affidavit Mr.. Fitch says tho
trust deed to VIM. S. Fleming was to
secure the payment OF MIR. Fitch's fee
and repayment Of cash advances made
| by him to Kalua Kapukini for her sup.
port and the expenses of litigation. The
advances were made necessary by the
refusal OF her guardian. J. A. MagCOn
to pay the spendthrift anything for her
support after the commencement Of
proceedings in the First Circuit Court
to terminate the spendthriit trust. Aft
ct the making OF the trust deed. Mr.
| Fitch for the first time examined care.
/ fully into ihe condition Of Kalua's cs
tate. and found that while its actual
value was from $4,000 to slj.OO0
mech OF II was unproductive. For one
| thing. there was another's life CstasG
in one piece of property, and for an.
other J. a. Magoon owned an unlivId
cd one.third and J. p. Mcndonca N
Undivided One-siXth of the most val
liable portion OF the rcalty--viz.. an
undivided one-half OF lot on the corn"t
of Smith and Hotel streCts-"and no
satisfactory arrangement to sell "
lease 1t could be made between Ma.
COON as trustee. Nagoon as an individ
ual, and J. p. Mendonca."
THE allowance made by Judge Lit
tie TO Gear & Humphreys of $500 for
a counsel fee in former action and Of
$3.50 to Geo. A. Davis for counsel fees
and of $3.50 to J. A. Magoon for coun
sci fees" proceeds the affiant, "alsC
reduced the available assets of the es
tate. and, considering all the circum
stances, | voluntarily and of my owl
motion. and before an appeal was tax
ep herein. reduced my fee from s25O'
to $500 and agreed out of that to pa!
and did subsequently advance Geo. A
Davis. Esq. $3.50 for mis- services (be
sides $3.50 allowed by the COURT. thu
cent of the value of her estate. instea,
of 20 per cent as named in the trus
deed" For the same fee Mr.. Fitcl
says he agreed to attend to any parti
ton suit between Magoon, Mendonci
and Kalua and any litigation between
Kalua and the grantees OF her uncle
Kawelo.
Mr.. Fitch says the Supreme Cnur
"efused to admit the trust deed offerer
by MagOon as evidence. thus shutting
out affidavits Mr.. Fitch offered explain
ing that instrument, but after he ha
gone 10 the Mainland the court admit
ted the trust deed without the affida,
its. He says he has advanced Sl3j t
Kalua for her support paid Davis
fee of $3.50 besides cashing his othG
fee of $3.50 ordered by the court. an
in conclusion prays thus:
Il submit respectfully to your honor
that inasmuch as your decision al
pears to be based upon the assumptio
that Kalua Kapul,ini agreed to pay :
per cent of her estate to her lawyC
for his services, when in truth and
fact she was to pay but 10 per cen
rehearing should be granted and
J decree made upon the record withol
reference to the trust deed or procee
ings hereunder, and that pending sal
= rehearing the guardian, ]. A. MaGoo
Esq, be directed to pay me out Of Il
estate the cash advances actually an
I necessarily made by me to Kalua X
pukini."