Year: 1862

/
! ing the time the said Burbank had charge of the
plantation, but If that credit is given now claim
ed, he insists that the current personal expenses
of herself and family should be charged


| The respondent further answers and saws that
at the time the contract was made the plantation
was a leasehOld, and both parties regarded it for
their interest to obtain the title in fee simple
which they did for portion of the plantation for
the paym mt OF So O04 90, and he that this
was done by mutual accord. and that it was for the
benefit of all parties. The respondent denies that
said Burbank was to have deed of half of the
plantation after the coming in of the crop growing
at the time OF the decease OF the said Burbank and
that at time within the recollection Of the re-
sPondent did said Burbank ever intimate wish to
change the original contract


And this defendant further answering, denies
positively that he ever consulted the said Mary A.
Burbank In reference to the sale of the KOloa plan
tatiOn, or in reference his business connection
with the plantation, but on the contrary, AYERS
that previous to this defendants visit to the Unit
ed States, in the years 1859 and 1860, the said
Mary A. Burbank never, by word or deed, awak-
ened in the mind of this defendant suspicion that
she believed that she her children had any valuable
claim to interest in the KOloa plantation, but ON
the contrary, impressed this defendant with the
belief that she was suffering under IA painful sense
OF destitutlOn and dependence upon this defendant
from which this defendant did endeayOr to relieve
her by the declaration that she had no occasion for
soicitude in regard to her support, but that he
never (even during the time that he regarded her
as worthy OF careful consideration, from her de-
pressed state of mnd) far avoided the truth as
to say that she had ample means for her support
| in her own right, words to that effect.


| The respondent further says, that he positively
denies that he ever used the expression attributed
! to him. intending thereby to admit that the said
Mary A. Burbank, or her children, were either
equitably or justly entitled TO any portion or part
OF the plantation, but on the contrary, AYERS the
truth to be, that although it was the purpose of
this defendant to make the said Mary A. Burbank
believe she was welcome to a home in his family
and that her children should be properly cared for
and that she had occasion to be disturbed about
| the FUTURE he studiOusly avoided communicating
her circumstances to her, for the reasons above
stated, and that she might not feel embarrassed in
accepting and receiving the hospitalities extended
| to her and her children


| And this defendant, further answering positive
| ly denies that he has more than one occasion,
subsequent to the decease of the said Burbank. or
in single instance admitted that the heirs of the
said Burbank were legally or equitably entitled TO
portion of the koOa plantation, at one time one
third and at another One-qu4rter, but admits that
it has been his purpose to protect the family of his
| late brother-in-law, Samuel Burbank deceased,
against the contingency of their being thrown up-
on public charity in foreign country, in the event
of this defendants decease, and this defendant has
| been informed and believes, that a memorandum
prepared by him to guide the solicitor of this de-
fendant in preparing in his last will and testament
has been surreptitiousy seen and a copy of the
same obtained by the said Mary A. Burbank and
that he has good reason to believe that it was from
that alone that she obtained all the infor-
nation that she possesses in relation to this de-
fendant having admitted. in any form or shape
that the heirs of the said Samuel Burbank were
entitled To receive, of justice, any portion
or interest in the koloa plantation. He further
says, that in a conversation with personal friend
of said Burbank, after his decease, he did say
that he hoped the enterprise would not turn out
an entire failure. and that although at the time
he did not know how the estate would turn out, he
| hoped they would have something left, perhaps
Onequarter, although he did not intend this as an
acknowledgment of any legal equitable interest.
| The respondent further answers and says, that
| the original contract is outstanding, uncan-
celled and operative, and that there was due him
| from said Burbank at the time of his decease, on
the purchase and for his portion of the advances
the sum Of SAT oil A.


And this defendant, further answering, ayers
that he has been informed and believes, that the
estate of the said Burbank is largely nsovent, and
that the administrator, the heirs of the said Bur-
bank, are entirely without the ability to pay this
defendant the amount due to him. above stated,
and that the one-half Of the KnIoa plantation, at
the time of the decease of the said Burbank was
not worth and could not have been sold fDr the
|
Ing IN possession OF the same, he has retained it,
and ma aged and controlled it for his own benefit
and profit. as he had a good right to do, and that
he Is not required to account for the management
and products of the plantation since that period
but that he is ready and willing to do so if the
cOmplainants In this suit ready and willing to
allow this defendant interest on the amount Justly
due. on the decease of the said Burbank from his
estate, and are ready aud willing to cancel and pay
the balance that may be found due to this defen-
dant for the price of half of the KOlOa planta-
| ton and advances made on that account and also
to convey the One-haf of the estate as it now
stands, upon the receipt OF such balance after the
is adjusted, to the heirs of the said Burbank
and their heirs and assigns, IN accordance with
the terms of the ori final contract. And the re-
sponden further says, that If the complainant de-
clines to fulfill the contract rendered in his an
swer, the same should be cancelled and therefore
the defendant humbly prays that unless the amount
justly due on said contract is paid to him by the
| heirs of the said Burbank. that decree may be
entered, ordering the said heirs by their guardian
ad litem, to cancel said contract.


| By the principles of law and equity, contracts
must be fulfilled before the benefit resulting there
FROM can be enjoyed If the ancestor failed to full
fill hMQbligations, his heirs cannot reasonably ex-
pect RXantage of it until they fulfill it. Il is
not pres that the contract is fulfilled, but il
is contended first place. that the plantation
was improved and enfessed during the time that
the ancestor had the charge of it, and that it de-
rived advantages from his labor; that therefore it
was fulfllment pro idnto. and that proportion
ate part of the estate should be conveyed to the
heirs.


| The authorities do not support this position.
| Neither law nor equity make subdivision Of a
contract of this character. 1t ia one and entire.
1t is u fu6llment non-fui6llment. If, for ex-
ample, a contract is made for the purchase of a
house for certain sum. to be paid at several
stated periods, and there should be failure in the
payment of portinn of the amount. it will not be
cQntended that Court of Equity make new
contract, and order the conveyance of porti0n of
4 tho To, tha arrnor raid