The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1909-11-13
NJ CANDLESS IS
STILL CREDITOR
Petition Fails to Bring Estate
Means to Pay Link His
Just Demands.

"An administrator of an insolvent
{ estate has no authority to bring a suit
to set aside conveyance of real es-
tate made by decedent in fraud of
! creditors
The above is the principle of law
expressed in the syllabus of the opinion
rendered by the supreme court yester
day on the reserved questions from the
circuit court in the matter of the estate
of Antoine J. Lopez, deceased.
The question reserved by the lower
court was whether the demurrer of the
! administrator of the estate to a petit
ton Of Link McCandless to set aside
a deed of trust which he claims de-
frauded creditors out of just claims,
should be sustained.
| The case is an interesting one from
! legal standpoint. The deed of trust
mentioned was made by Lopez, before
his death, to Foster, and, according to
the petition of McCandless, transferred
from the former to the latter all his
real estate, which is claimed to be
worth 100000.
! When the administrator figured up
the assets and liabilities of the estate,
he found the former amounted to
$774.76, which, after deducting admin
istration expenses, dwindled down to
! $523.76. The liabilities amounted to
$l007.48. This made the estate insol-
vent, and it also made it uncomfortable
for the creditors, of which Link Nc
Candless found himself to be one.
| Link hustled around to discover
means by which he could get a little
more than the above figures promised
him, as he knew Lopez was not so de-
cidedly poor the estate he left
| showed he was. This hustling- resulted
in finding out that all the deceased s
real estate had been turned over in
| trust to Foster, and McCandless imme
| diately petitioned the court to have the
| deed set aside and the land made a
| part of the estate so he could get his
money back. This deed, he claims, was
made to defraud the creditors, and the
petition was based on this.
The administrator demurred to this
petition on several technical grounds,
which the supreme court, to which they
were reserved, upheld in an opinion
| rendered by Chief Justice HartWell
yesterday.
Deprived of legal terms, the objec-
tions were as follows: In the first place
the administrator claimed that McCand-
less should have brought a regular
creditor s bill in equity, as, according
to him, probate court had no power
to act on a petition of such nature.
Secondly, the administrator claimed
that he was not permitted by law to
attack any such deed, even if it was
made to defraud creditors. A third
reason was strictly technical.
In discussing the two sides of the
question, the court renders its opinion
to the effect that the demurrer should
be sustained on the second objection
| of the administrator.
Dreier Estate Brief.
| Deputy Attorney General E. A. SUIT
ton has filed a brief in the circuit court
in answer to that filed by Attorney
Clemens on behalf of Cecil Brown in
the latter's suit to recover an inheri-
lance tax paid to d. L. Conkling as
treasurer of the Territory. The case
will probably be decided quickly, now
that both briefs are on record and
another point of eonstitutionality will
be settled.
The facts of the case as agreed upon
by both counsels in the briefs and in a
stipulation previously fled, are as fol
lows: The estate paid an inheritance
tax of 81 1854, which was two per cent.
of the value of stock transferred from
Brown, who had received it in trust
from August Dreier, to Dreier's chill
dren.
The question involved is whether
such transfer of property comes with
in the inheritance tax act. On Novem-
Der 5, 1907, Dreier executed a trust
deed to Brown of 1896 shares of August
Dreier, Limited, in trust to pay to
Dreier during his lifetime all the income
from same and upon his death provided
that the income should go to his chill
dren and left it to the discretion OF
Brown to transfer the stock to the chill
dren at any time after Dreier's death
Dreier provided that the shares should
remain in his names on the books OF
the corporation and that he should have
| all the rights of stakeholder until his
death. He also reserved the right tC
revoke the trust deed whenever he Sc
pleased. After his death, the transfer
was made to the children as provided
and the aforementioned inheritance
: tax was paid to the Territory under pro
: test. Brown is now suing to recover it
The law on the matter is ''that al
property which shall pass by viii o.
= by the intestate laws of the Territory
from any person who may die seizeC
t or possessed of some or of any interes
in, or income from, same, which shall
be transferred by deed of grantor mad'
in contemplation of death of grantor 0.
. intended to take effect in possession O.
enjoyment after such death
shall be subject to the tax"
Clemens, in mis- brief does not argu
his case very fully and his grounds TO
recovery of the tax paid seem to b.
vague. He claims the act is uncon
stitutioual and also that it constitute
] double taxation. Sutton has dug u,
host of authorities to back his de
Tense.
Guilty and Resigns.
There Is no longer a Supervisor Ka
hee of Kauai. He yesterday tendere
his resignation to Governor Frear
who accepted it. but the action wa
not necessary, for the law had alread