Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1912-10-08

IN equity 10 declare anu execute d
trust was filed in the same Circuit
Court by the said A. F. Judd, as next
friend of George and Francis, minors,
against c. A. Brown, John A. Magoon
and Irene; which will, after narrating
the history of the proceedings relat-
ing to the estate of the said John Ii,
deceased, alleged that the said will
directed that if the said Irene should
die, having borne children, the said
property should descend to her chill
dren, but that she should be the first
heir, meaning and intending thereby
that during her life she should have
the use and benefit of the said prop
erty, and that her children, by virtue
of said will, are the absolute owners
in fee" of the same, subject only to
their said mothers life estate; and
further alleged the divorce of the said
Irene from the said defendant e. A.
Brown, and the execution of deed of
conveyance by them Of the said prop
erty" in trust for the organization of
a corporation to hold the same and
to deliver one-third of the shares to
the said Irene, one-third to the said
Brown, and a third to the plaintiffs,
which corporation was duly organized
under. the name of The John Ii Estate
Limited, and delivery of shares made
accordingly, except that one share Of
those to be issued to said c.. A. Brown
was caused by him to be issued in the
name of J, A. Magoon, one of the de-
PENDANTS hereto; and scontended that
the defendants held such shares sub
ject to trust that upon Irene's death
the same shall be assigned to the
plaintiffs. .~.. T.. Z.
The bill thereupon contended that
no legal adjudication had been made
of said questions of law, referring to
the reserved questions upon which
the Supreme Court had ruled as set
forth above, for the following reasons,
to wit:
l. No decree was made in any of
such proceedings.
; 2. In all such proceedings, the chill
dren and Irene were represented by
the same counsel, although their inter
ests were conflicting. IL" .; -. >: ="
3. No court which was organized
as required by the Constitution of the
of Hawaii had obtained APP
pellate jurisdiction of any of the said
reserved questions of law. = es,.,I
4. The jurisdiction of the said SUI
preme Court concerning the eonstruc-
ton of the said will, If it ever exist
ed, ended upon its determination that
no trust was in existence concerning
the said property. ".<.s> .--.t
8. All matters of law arising and
pending in the first case before. Judge
Cooper we're required by law to be
decided by him and by no other court
or judge, and the same, nothing hav.
ing been decided by him, were not
awfully presented or decided by any
other court or judge.
q. There was no statutory or other
to reserve questions of law
in the first case for the opinion of the
Supreme Court and such reserved
questions of law did not lawfully come
before such court, and so it had no
thereof. |
Judge Writings Authority.
z. Judge Whiting of the Supreme
Court had no constitutional authority |
.os reorganize the Supreme Court. two
of the justices thereof being disquali- |
led, by installing two members of the |
bar of the Supreme Court to sit in !!
heir places for the decision of such |
questions.
:. After argument upon such re: !
served questions before such court, !
lpon the withdrawal of one of such !
substituted justices, before an opinion |
vas reached by such court, new
court to hear argument and decide /
'uch questions could not be lawfully |
organized.
The bill prayed, among other things,
or an order restraining the defend
Ints from disposing of the shares held |
W them as aforesaid, and that they
'e decreed to assign the shares held
~ them in trustee in trust during
he life of said Irene, to pay the in
'ome thereof to those entitled thereto
md at her death to assign all of the
aid shares to the plaintiffs; and for
general relief.
The bill was demurred to on gener-
Il and special grounds, one of the lat
er being to the effect that 1T does
lot appear that any of the property
u estate of the plaintiffs was con-
eyed to said corporation either by
hem Urene and c. A. Brown or by
NY person purporting to act in their
ehalf.''
The court sustained the demurrers
n the ground that the deed of con-
eyance referred to, which was made
part of the bill, did not convey or
import to convey the estate of the
laintiffs in the said property'-the
state of John Ii. deceased-supposing
hey had an estate therein.
The plaintiffs thereupon amended
heir bill by adding thereto averments
f intention on the part of the grant
rs of the said deed or conveyance to
onvey to trustees for the organiza-
ion of a corporation the fee simple of
he lands devised by the will to the
laintiffs, and that the ownership in
re simple in such lands was claimed
nd exercised by the said corporation
y virtue thereof; that the defendants