The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-10-09
FITCH To
GEO. GEAR
Famous Attorney On
Some judicial
Decisions.

Editor Advertiser: I have just read
an article in the Honolulu Star of Sept.
18th in which there is reported de-
cision Of Judge Gear in which he
held that 1 received ss7s52 and the
heir only s207.S7 of the. estate of Jose
Antonio da Silva
This decision appears to have been
made in a proceeding instituted by Mr..
A. A. Gonsalves as agent and attorney
| in fact of Mrs. Antonio da Silva, widow
of the decedent, against her former
agent and attorney in fact. Mr.. An
tonic da Palios.
Judge Gear sustains the demurrer of
da Pallos to the complaint of GonsaIves
and dismisses his petition, and then
proceeds to give me roast" based
upon total misstatement of the facts
in the case.
Those facts are as follows. Da Pallos
employed me to recover for Mrs. Jose
Antonio da Silva residing in British
Guiana and who claimed to be the
widow of Antonio da Silva who died in
Honolulu. whatever of her husband
estate she might be entitled to. The
estate had been administered upon on
the petition of Mr.. Osario, who claim
ed to represent a sister of the deceas-
ed residing in Portugal. and there re-
NAMED after paying all debts and
charges se73.52 in cash, some jewelry,
and four lots of land in Honolulu val
ued at S1500.00
1T was denied by the administrator
that the deceased left widow, and. as
the case was litigated one, agreed
with da Pallos, as the attorney in fact
and agent of the widow, to take. it for
a fee of $50 cash, and twenty per cent
of the value of all property and money
obtained 1 think that the bar of Ho-
noIuIu will sustain me in the assertion
that the fee was neither an unusual
nor an exorbitant one. I secured from
it in all about $500 and not $973.52 as
stated.
As a result of the contest before
Judge Gear he held that Mrs. da Silva
was the widow of the deceased. and
ordered one-half of the estate to be
distributed to her, and he gave Mr..
Vivas, who represented the sister, three
months in which to prove her exist
ence
I therefore collected one-half of the |
cash which had been deposited with
the clerk. 1 deducted from it $247.35 |
for my percentage on value of lots and |
money collected--according to contract |
and paid da Pallos the balance.
At the end of three months the case /
was again called. Mr.. Vivas acknowl- |
edged in open court that he had been |
unable to obtain any further proof OF |
the existence of a sister, and Judge |
Gear thereupon ordered the other hall
of the estate to be distributed to the /
wife. 1 again deducted s247.3 50 to which |
I was entitled under my contract and |
paid over to da Pallos the balance.
Shortly after the first decree of dis
tribution, at the instance of da Pallos
I wrote the American Consul at |
Funchal, Portugal, requesting him to
inquire for the alleged sister and if
found to apprise her of the situation.
I enclosed a power of attorney to da
Pallos for her to sign and informed the
Consul that if she awaited herself of
it and of my efforts, it would be upon
the understanding that she would pay
me the same percentage already paid
by the wife.
Papers from Funchal proving the |
existence of the sister and accompanied
by the power of attorney executed by |
the sister reached me several weeks
after the decree of final distribution
had been made.
1 advised da Pallos that if this proof
had arrived in time on-half of the es-
tate would have been allotted to the
sister, and suggested that he commun-
icate with the wife and obtain her
80
Instead of doing so he instituted pro-
against me before Judge Gear,
in behalf of the sister, requiring me
to return into court all of the s4S6.76
I had collected under the decree of
final distribution. Judge Gear issued
an order requiring me to do so. but on
proof that L had only retained a por-
lion of it, and had paid over the other
portion to da Pallos he modified the
order accordingly. From his order
to the Supreme Court ana
hat tribunal reversed his order, on
he ground, if 1 remember rightly, that
after the decree of distribution he lost |
of the subject matter
The fact of my contract with da
oallos. the fairness of such a con-
ract. and the amount that was secureu
~ me under it were never in issue in
my proceeding before any court. The
,nly question involved was whether
he sister could be heard at all after
decree of final distribution.
If she had been heard then submit |
hat her acceptance of the conditions
imposed in my letter to the Consul !
constituted contract requiring her to
Jay me the same percentage that was
laid by the wife.
Da Pallos, it appears, has not ac-
counted to the wife for his steward
'hip as her attorney in fact. That is
lot my affair. Neither was it my af-
air that he paid SIS out of the estate
unds to Refs for interpreting. I Meth
n advised such a payment nor knew
# it a the time.
I have done nothing in the da Silva
,ase inconsistent with the highest |
tandard of professional honor. Judge
Gear has violated all rules of judicial