The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-05-08
FEE FADES
INTO AIR
Magoon to Guard
His Ward
Again.

1
Davis will receive no further allow
ance for expanding so much eloquence
in the case. and Mr. Magoon's fees are
cut down to- 800. The decision in the
matter OF the estate of Kalua Kapu-
KIM. rendered yesterday by Chief JUS
tice Frear, and concurred in by Jus
tees Perry and Galbraith. was bomb
shell and upset many nice little ar
rangements for the division OF Kapu-
kinfs estate.
Judge Little. OF the Hilo circuit. who
presided at the October term OF the
Circuit Court. rendered the decree in
the Probate Court which terminated
the spendthrift guardianship OF MI
Magoon. The syllabus states that "a
/ Circuit Judge. sitting in probate, rem
dered a decree terminating a spend
thrift trust and discharging the guar
i dian on the ground that the same was
| no longer necessary. It was made to
| appear. on appeal. that on the same
/ day the decree was entered the ward
i executed n trust deed conveying her
/ entire estate to q trustee and directing
| that one-fifth OF the amount thereof
| be paid to one of her attorneys as
/ fee The Supreme Court has held that
such a trust deed may be considered.
4 when properly presented, by the APP
/ pellate Court. and that in this case the
| deed. together with the other evidence.
shows conciusiveIy that the decree APP
| pealed from Is erroneous"
| Kapukini fled her petition In the
Probate Court setting out that she be-
| lieved she was capable OF managing her
! own estate and affairs. and prayed that
| the spendthrift trust be terminated and
the guardian discharged. The Judge
found for the petitioner and ordered
the guardian discharged. He ordered
that George A. Davis be paid out OF
the estate $3.50 for his fee and the same
for Magoon. The guardian appealed.
The decree was filed October Z. 1901.
at $40 p. m. The trust deed was ac-
knowledged on the same day one hour
and twenty minutes later. By this
deed Kalua. in consideration OF 81, con-
veyed to William 8. Fleming, as trus-
tee. all her property. He was to pay
TO Thomas Fitch 20 per cent of the
gross value OF all the property that
had been released by her by the decree
terminating the spendthrift trust. The
Supreme Court concludes:
This trust deed Is an eloquent wit
ness against the petitioner. II is a
confession on the part OF Kalua, IL not
n conclusive demonstration of error in
the finding of the trial Judge. T. e.. that
the guardianship of Kalua's property
was no longer necessary. The even ,
Ing of the day that she Is found COM
petent 10 manage and control her own
property. and within two hours after ;
the decree is filed. she conveys all OF
her estate to a trustee and gives one
fifth OF the gross amount thereof to
one OF her attorneys as a fee. This
trust deed and It's generous distribution 5
OF the wards inheritance is not a /
pleasant subject OF contemplation in I
connection with the estate OF one who '
for years past has been under the pro-
lection OF the court. The appeal is sus-
tanned and the decree reversed and the
cause remanded to the Probate Court /,
with direction to dismiss the petition y
and for such further proceedings as s
may be necessary" n
Judge Perry. in his concurring opin- y
ion, says that the evidence adduced at
the trial does not show that the ward
has reformed in respect to her habits =
as to excessive drinking or that the .
He says that the trust-deed episode is c
sufficient cause for a continuance OF the b
QUESTION OF VITAL IMPOR- E
LANCE. =
On Monday morning Judge Gear will II
give his decision upon the question u
raised and discussed as to whether the "
three Circuit Court Judges have the Il
right to sit separately in term time to Il
hear jury cases. under the construction o.
NJ section 80 OF Chapter LVII OF the r,
Session Laws OF 1892. amended by the q
legislature OF 1901. as follows: b
THE Circuit Court OF the First Cir ID
ruit shall consist OF three judges. who g,
shall be styled First, Second and Third a!
Judges respectively, OF the Circuit w
Court OF the First Circuit. either OF e,
whom may hold the court" &c
The question was raised as to the e.
and intent OF the phrase. III
either OF whom may hold the court" et
md the attorneys generally felt that &C
The meaning was that only one Judge in
,ould hold the court as presiding Judge cd
n the hearing OF jury cases. the others a,
lifting only at chambers. "
Arguments were presented by attor- pI
leSs Robertson. Dickey Magoon and NJ
,ecil Brown. TO show that there was bs
10 intent 20 ciTcumscribe the pro-
'edure OF the courts by permitting only
ne judge 10 hear cases Former Judge
stanley made the positive statement 50
n reply TO n question put TO him by s
Iufse Humphreys. who sat on the tn
'ench with Judge Gear. that he con- br
idered IL unsafe. now that the ques- ne
ion was raised. to have decisions a
ONE from any court in term time ex- CO
ept those in which the presiding judge be
Fas concerned. and doubted the legal OR
~ OF having ihe three judges sit sep a
rately. The question had been raised OF
Fhile he WAS sitting on the bench but Sh
ad never been pressed as IL was con- fo
idered that the court would become
ongeSted with cases. ,
Mr.. MagOon suggested that IL the
ua<e would deny that he had any ju- 81 81
isdiction IN the matter OF holding u
curt while Judge Robinson was sit 40
ing. the matter could be brought be-
Ore the Supreme Court on mandamus Ji'
roccedings. Most OF the attorneys as *
,is would h. n s,,,,,t. -. -, :, ~ he
ihicuity. leaving the question to the -
upreTrc Court 90 decide pr
Much % the argument hinged on the m
81 - the word either in the amend ~