Lazarus v. Lazarus
| Decision Date | 04 May 1900 |
| Citation | 12 Haw. 369 |
| Parties | KAUIMAKAOLE LAZARUS v. ALEXANDER LAZARUS. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
To create a resulting trust where the purchase money is paid by one and the title is taken by another, the entire purchase money must have been paid by such party, or if a part only be paid such payment be paid for some aliquot part of the property, as a fourth, a third or a moiety, and there must be no uncertainty as to the proportion of the property to which the trust extends. And again such trust must arise at the time of the purchase; it cannot arise by after advances.
A wife is not entitled to dower in lands of her husband, of which he was not beneficially seised. Where a husband is seised of an estate to hold in trust for another, it is a familiar rule that the wife shall not be endowed of such estate although he is manifestly seised of the fee.
W. A. Henshall for plaintiff.
J. T. De Bolt for defendant.
Bill to admeasure dower. Decree for defendant before Circuit Judge Stanley, from which plaintiff appeals. The decision rendered by Judge Stanley is as follows:
“The plaintiff in her petition alleges that she is the widow of one Joseph Lazarus who deceased on June 25, 1897; that the deceased was during his lifetime and his marriage with the plaintiff seized and possessed in fee simple of certain premises being Lot 501 situated on Kinau street and Lunalilo street, Honolulu, described in R. P. (Grant) No. 3517 issued to said deceased on January 29, 1891; that on July 27, 1893, and during their marriage the said Joseph Lazarus conveyed the said premises to the defendant Alexander Lazarus, who is now in possession thereof, claiming title as grantee of said Joseph Lazarus. She further alleges that she never released her right of dower in the premises and sets forth a demand upon the defendant to set apart her dower and his refusal to do so, and concludes with a prayer that her dower may be admeasured and set out by this court.
The defendant in his answer admits the marriage of plaintiff to Joseph Lazarus, and the death of Joseph Lazarus as alleged by the plaintiff. He denies that Joseph Lazarus was at any time seized or possessed in fee simple or at all of a dowable estate in the premises, or that he was entitled to any beneficial estate or interest therein or in any part thereof. On the other hand he claims that the premises were purchased by him from the Hawaiian Government and that he paid the purchase price therefor with his own money, but that the Royal Patent No. 3517 therefor, intended for him was inadvertently and unintentionally taken out in the name of said Joseph Lazarus, and alleges, that for the purpose of correcting said error the said Joseph Lazarus in July 27, 1893, executed a deed of the premises to him.
He admits that he is in possession of and claiming title to said premises in fee simple, but denies that he so possesses or claims title thereto as the grantee of said Joseph Lazarus; he further admits plaintiff's demand upon him for dower and his refusal, also that the plaintiff has never released any dower right in the premises, but alleges that she is not and never was entitled to any dower right therein.
To this answer the plaintiff filed a formal replication.
The sole question to be determined in this case is whether Joseph Lazarus deceased, was ever seized or possessed of a dowable estate in the premises in question. After considering the evidence introduced for the plaintiff and defendant, I find the facts proven to be as follows: On November 13th, 1890, a number of lots of land including the premises in question were sold by this government at public auction. Joseph Lazarus, late husband of the plaintiff, was present at the sale and two lots Nos. 501 () and 502 were knocked down to him for the sums of $1256 and $1800 respectively, and that for lot 502 he paid the full amount of the purchase price, and but 25% of the purchase price of lot 501, stating at the time to James H. Boyd, clerk in the Interior Office, that the latter lot did not belong to him but was purchased for another person. On January 7th, 1891, the records of the Postal Savings Bank in Honolulu show that the defendant withdrew $1240 from his deposit. On the same day the defendant accompanied the said Joseph Lazarus to the office of the Minister of the Interior and there paid to Boyd the balance due on the premises, and at the request of the deceased the receipt for the whole of the purchase money was made out in the name of the defendant and handed to him (see Exhibit B).
The Royal Patent for the premises was issued on January 29th, 1891, to the deceased and delivered on March 5th. There is some discrepancy between the testimony of Boyd and the defendant as to how it was that the patent was issued in the name of Joseph Lazarus, but in view of all the other circumstances of the case, I consider it immaterial. Shortly after the purchase the defendant entered upon and took possession of the premises and commenced making improvements thereon, building two houses and laying water pipes, and paying the water rates and taxes thereon to the present day. The first house was erected by him at a cost of $925 and the second house, occupied by himself, was moved thither from some other premises leased by him from the Bishop Estate. The new house was occupied by one Harry Juen and his wife, granddaughter of the plaintiff as the tenant, as I believe, of the defendant at a monthly rental of $20. It was claimed by the plaintiff and her witnesses that the defendant occupied the premises by the permission of her deceased husband on his undertaking to pay the taxes and water rates on the land, and that the new house erected on the premises was built by the deceased for the use of Juen and his wife,- Juen testifying that he was a tenant under the deceased and not under the defendant. I do not believe that this claim is founded on truth. Juen admitted that on the request of the defendant he drew up a lease of the premises in which he was named as the lessee and the defendant as his lessor, and that the body of Exhibit L, purporting to be one-half of the lease is in his handwriting, though he denies the genuineness of his signature thereto. It also appears that the defendant on the 5th of May, 1891, took out a policy of fire insurance on the building which is described in the body of the policy as “the one-story frame shingled roof building occupied by tenant.” (See Exhibit M.)
On July 27th, 1893, the deceased made a deed of the premises to the defendant. The evidence discloses that about this time the deceased had instituted divorce proceedings against the plaintiff, his wife, and that the defendant was a...
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