Teixeira v. Teixeira

• Court: Hawaii Supreme Court
• Writing for the Court: OPINION OF THE COURT BY STAINBACK
• Citation: Teixeira v. Teixeira, 40 Haw. 631 (Haw. 1955)
• Decision Date: 11 January 1955
• Docket Number: NO. 2890.,2890.
• Parties: PAUL TEIXEIRA, ETHEL TEIXEIRA, LOUISA TEIXEIRA OLIVEIRA, BELINDA TEIXEIRA PERREIRA, FLORENCE TEIXEIRA GUERRERO AND JOE TEIXEIRA, JOSEPHINE TEIXEIRA, AUGUST TEIXEIRA, VIOLET TEIXEIRA, GLADYS TEIXEIRA, JOHN TEIXEIRA, GILBERT TEIXEIRA AND PATRICK TEIXEIRA, MINORS, BY PAUL TEIXEIRA, THEIR UNCLE AND NEXT FRIEND v. ANTONE TEIXEIRA AND ANNIE TEIXEIRA.

40 Haw. 631

PAUL TEIXEIRA, ETHEL TEIXEIRA, LOUISA TEIXEIRA OLIVEIRA, BELINDA TEIXEIRA PERREIRA, FLORENCE TEIXEIRA GUERRERO AND JOE TEIXEIRA, JOSEPHINE TEIXEIRA, AUGUST TEIXEIRA, VIOLET TEIXEIRA, GLADYS TEIXEIRA, JOHN TEIXEIRA, GILBERT TEIXEIRA AND PATRICK TEIXEIRA, MINORS, BY PAUL TEIXEIRA, THEIR UNCLE AND NEXT FRIEND

v.ANTONE TEIXEIRA AND ANNIE TEIXEIRA.

NO. 2890.

Supreme Court of the Territory of Hawai‘i.

Argued December 10, 1954.

Decided January 11, 1955.

OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

Where a grantor who is old and weak in mind and body makes a deed of gift of all his property, reserving only unto himself a life interest, to a son to the exclusion of his other children with whom he is on affectionate terms, which son is and has for some years prior thereto been the agent and adviser of the grantor in all of his business affairs, there is a presumption of fraud and undue influence from this fiduciary relationship.J. V. Esposito ( Esposito & Esposito with him on the briefs) for respondents-appellants.

C. N. Tavares (also on the brief) for petitioners--appellees.

TOWSE, C. J., STAINBACK, J., AND CIRCUIT JUDGE MCKINLEY IN PLACE OF LE BARON, J., DISQUALIFIED AND ABSENT.

OPINION OF THE COURT BY STAINBACK, J.

This is a bill in equity to cancel a deed upon the grounds of fraud and undue influence or in the alternative to declare the grantee therein a constructive trustee of the premises conveyed for the benefit of the heirs at law of the grantor, that is, the grantor's two sons, including the grantee, the grantor's daughter, and the children of a deceased son of the grantor. It also asks for an accounting and general relief.

The deed dated April 29, 1935, is from Jose Teixeira to his son Antone Teixeira conveying certain property in the Kapiolani tract, Kalihi, Honolulu, with improvements thereon, subject to a life estate in the grantor.

Prior to this deed, a deed dated April 26, 1935, from Jose Teixeira's children (Antone, Paul, Louisa and John) to their father, Jose Teixeira, conveyed to the latter a portion of lot 8, block 7 of the Kapiolani tract, being a portion of the land included in the deed of April 29 hereinabove referred to. The consideration expressed in both deeds was love and affection.

The deed from the children conveyed property which had been owned by Gilhemina Teixeira, the wife of Jose Teixeira, who predeceased her husband and left a last will and testament devising her property to her husband, but her will had never been probated and the statute of limitations for the probating of the will had expired prior to the execution of the deed from her children to their father.

Gilhemina Teixeira died in 1928. The issue of the marriage of Jose and Gilhemina were Antone, Paul, John, and Louisa Oliveira, all of whom survived the mother and all except John survived their father. John died on May 2, 1935, leaving ten surviving children. Jose Teixeira, the father, died January 30, 1937, intestate, leaving as his heirs at law Antone, Paul, Louisa and the children of his deceased son John.

The petition charged fraud and undue influence by Antone Teixeira in securing the execution of the deed of April 26, 1935, it being alleged that false representations were made by Antone Teixeira to the four children of Jose Teixeira and their wives to the effect that upon the death of the grantee, Jose Teixeira, his four children or their issue by right of representation would share equally in the estate of said Jose Teixeira either under his will or under the laws of descent of the Territory, whereas in truth and in fact the said Antone Teixeira at and prior to the time of the execution of said deed was secretly and unknown to his father and his brothers and sister scheming to secure from his father an absolute deed to him of the property subject to such deed, as well as all of his said father's property, all this upon the theory that the deed of April 26, 1935, and that of April 29 following were parts of the same scheme and transaction; that false representations were made by Antone to his father Jose to the effect that the deed of April 29, 1935, was a trust instrument whereby the grantee was creating a trustee of all the property of the said Jose Teixeira at the latter's death for the purpose of distributing the same equally to his children, Antone, Paul and Louisa, and the children of his son John (who died on May 2, 1935); it further sets out that undue influence was presumed to have been exerted by Antone Teixeira upon his father Jose Teixeira by reason of conditions and circumstances of said Jose Teixeira existing at the time of the execution of the deed of April 29, 1935, namely, his mental weakness, his illiteracy and weakness, his lack of independent advice, and the fiduciary relation already existing between himself and his son Antone.

The respondents filed separate answers of general and special denial of charges made, and the issues as presented by the pleadings were decided by the trial judge, Le Baron, in favor of the respondents; upon appeal to this court the decree was reversed and the cause remanded for a new trial, the grounds of the reversal being that the trial judge had refused to consider parol evidence tending to invalidate the deed, this court holding that the trial judge should have considered declarations of the donor, since deceased, showing or tending to show the state of mind of the donor at the time he made the deed; that such declarations were an exception to the hearsay rule, both those made prior to the deed and those made subsequent to the deed, if tending to show his mental condition at the time of making such deed.

In commenting on the lower court's refusal to consider declarations made prior and subsequent to the deed, this court said: “It appears from the evidence, and it is not disputed by the respondents, in fact it is admitted by them, that Jose Teixeira prior to April 29, 1935, the date of the execution of the second deed, made statements and declarations in substance and to the effect that upon his death his four children or their issue by right of representation would share equally or substantially equally in his estate and that his eldest son Antone had been authorized by him to effect its distribution accordingly. It also appears in evidence, although denied by respondents, where the statement or declaration was allegedly made to them or either of them or made in their or either of their presence, that Jose Teixeira made similar statements and declarations subsequent to the execution of the second deed, repeated up to the time of his death.

“There were also introduced in evidence statements and assertions made by Jose Teixeira both prior and subsequent to the execution of the deed of April 29, 1935 * * * corroborative of his intentions otherwise completely expressed. These statements, declarations, and assertions, occurring both before and after the execution of the deed of April 29, 1935, were made in some instances directly to Antone; in some to his other children and his daughter-in-law Ethel in the presence of Antone or his wife or both and in some instances to his children and his daughter-in-law Ethel and friends separately in the absence of both Antone and his wife.” (Teixeira et al. v. Teixeira, 37 Haw. 64, 68.)

The case was retried to a large extent upon the same testimony of the same witnesses with additional witnesses for the petitioners.

We shall not attempt to review the evidence in detail; in fact it is impossible to make such a review as the testimony of several of the witnesses was not available due to the death of the...