The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-06-26
JUD|C|ALLY
ROASTED
The Three Ellises
Done Up Brown
BY Court.
Hinted That Lawyers
Were Out After
Booty.
Jehn K. Sumner is Decided To
Be Entitled to Receive
His Money Back.

BY majority Opinioh int sup N444S
Court has decided that the John X.
Sumner trust was lawfully revoked
and that Sumner is entitled to receive
the s4s.O25 of his money deposited in
the Circuit Court. Chief Justice Frear
writes the opinion. in which Justice
GaIbraith joins. a dissenting opinion
being filed by Justice Perry. Exclusive
Of two pages OF syllabus the prevailing
opinion occupies 2s pages Of typewrit-
ing, while the dissenting one takes up
1s pages.
The court is unsparing in scornful
denunciation of the Ellises and expo
sure of the inconsistencies Of their
fierce battle for their aged relatives
money. There are flashes here and
there, too, indicating stored lightning
for the heads of attorneys in the case
awaiting the touch of button.
POINTS DECIDED.
Stripped of technical details, the
points decided are as follows:
A trust cannot be terminated by the
consent of interested parties unless all
consent, and, in the absence of excep-
tional circumstances, voluntary
deed of trust containing no power OF
revocation, reserving a life interest in
the grantor, and with remainders to,
relatives. is isrevocable.
But in this case the deed is held to
be revocable under the exceptional cir
cumstances-'ft having been executed
by a weak-minded and easily influ-
enced, aged man. for his own convent
ence, as he supposed, and in conse-
quence of pressure brought to bear up
on him by his relatives, and there be-
ing evidence tending to show that the
trustee and other beneficiaries as well
as the grantor considered it revocable."
The burden is on the trustee seeking
to recover a portion of the trust fund,
to see that all the necessary parties
are brought in and to show that the
sum claimed is subject to the trust.
Nearest blood relatives are not the
same as heirs and do not include a
wife. and requests to survivors for life
give nothing to the issue, wife or hus-
band.
Some passages from the body of the
opinion. given complete or summarized
below. constitute pretty warm judicial
literature. In the first quotation, the
court informs the Ellises that if their
contention as to the irrevocable char
acter of the trust deed is correct they
have robbed their granduncle of $62,-
900 and ought to make restitution:
READY FOR sPOLIATION.
''The Ellises contend that the trust
could not be terminated either by the
consent of all interested who are now
in being and sui juris or by Sumner
himself. although they were ready
enough to participate in its spoIiation
to the extent of $4,000. If the trust
is not terminable. they and all others
who have shared in the trust fund
should be required to restore it. No
one has offered to do this. and it is !
doubtful how much of the $4,000 could
be obtained on execution in case the !
trust should be held irrevocable, even |
If judgment should be obtained by the ,
new trustee against the several parti-
cipants. How far, in case the trust !
were irrevocable the trustee or his
would be liable for the
$4,000 paid out in technical, though
unintentional. breach Of the trust, we
need not say. Whether any of the
sums distributed could be recovered by
Sumner as having been obtained by
fraud or undue influence, in case the
say. 1t doubtless would have been
much better for Sumner, considering
his inirmities and the activity and
avarice Of his relatives, If the trust
could have been kept intact. for he
would then have been secured q good
income for the rest of his life. but.
now that the greater portion of the
fund is gone. and the rest would soon
go to the others under ne trust, it
may be a question whether it would
be better for him to keep the balance
tied up. giving him the income only,
or to let him have it and get what
enjoyment he can from what he is not