Victoria Ward, Ltd. v. Zion Sec. Corp.

• Decision Date: 10 February 1944
• Docket Number: No. 2523.,2523.
• Citation: Victoria Ward, Ltd. v. Zion Sec. Corp., 36 Haw. 614 (Haw. 1944)
• Parties: VICTORIA WARD, LIMITED, v. ZION SECURITIES CORPORATION AND KAHUKU PLANTATION COMPANY.
• Court: Hawaii Supreme Court

36 Haw. 614

VICTORIA WARD, LIMITED,

v.ZION SECURITIES CORPORATION AND KAHUKU PLANTATION COMPANY.

No. 2523.

Supreme Court of the Territory of Hawai‘i.

Argued January 19, 1944.

Decided February 10, 1944.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. H. E. STAFFORD, JUDGE.

Syllabus by the Court

Where the grantor in a deed was both executor and trustee of testator's property, and had authority to sell real estate in his capacity as executor, the fact that he executed a deed in which he purported to act as trustee instead of as executor did not invalidate the deed as to the undivided interest in the real estate then subject to the authority given to the executor by the testator.

Acts of ownership when done by a grantee of the entirety from a cotenant are presumed, in the absence of explanation, to have been done in accordance with the estate purporting to have been conveyed to him and to be hostile to the rights of other cotenants.

A power over property is defined as liberty or authority reserved by or limited to a person to dispose of real or personal property for his own benefit or for the benefit of others, and operating on an estate or interest vested either in himself or in some other person; the liberty or authority, however, not being derived out of such estate or interest, but overreaching or superseding it, either wholly or partially.P. Cass( Cass & Silver on the briefs) for petitioner-appellant.

H. H. Moore( Stanley, Vitousek, Pratt & Winn with him on the brief) for defendants-appellees.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY KEMP, C. J.

This is an action at law to quiet title to an undivided 466/2880ths interest in and to Royal Patent GrantNumber 3025 to W.Lane, known and hereinafter referred to as the land of Waiono.

The parties, both plaintiff and defendants, claim title through James Robinson, who died testate in 1876 seized of the said land, and by his will duly admitted to probate, after certain specific bequests, devised the rest and residue of his estate (which admittedly included the land of Waiono) as follows:

“Seventh.One Eighth of the rest and residue of my property both real and personal I give devise and bequeath to my Executors hereinafter named in trust--the income from the same to be paid in Quarterly payments to my daughter Mary Foster for the term of her natural life, and after her death I give devise and bequeath the said one Eighth to her heirs--One Eighth to my Executors hereinafter named in trust--the income from the same to be paid in Quarterly payments to my daughter Victoria Ward for the term of her natural life, and after her death I give devise and bequeath the said one eighth to her heirs: One Eight to my Executors hereinafter named in trust--the income from the same to be paid in Quarterly payments to my daughter Bathsheba Allen for the term of her natural life, and after her death I give devise and bequeath the said One Eighth to her heirs: One Eighth to my Executors hereinafter named in trust--the income from the same to be paid in Quarterly payments to my daughter Matilda Robinson for the term of her natural life, and after her death I give, devise and bequeath the said One Eighth to her heirs: One Eighth to my Executors hereinafter named in trust, the income from the same to be paid in Quarterly payments to my Son Mark Robinson for the term of his natural life, and after his death I give devise and bequeath the said One Eighth to his heirs--One Eighth to my Executors hereinafter named in trust, the income from the same to be paid in Quarterly payments to my daughter Waty Robinson for the term of her natural life. and after her death I give devise and bequeath the said One Eighth to her heirs--One Eighth to my Executors hereinafter named in trust, the income from the same to be paid in Quarterly payments to my daughter Lucy Robinson for the term of her natural life. and after her death I give, devise and bequeath the said One Eighth to her heirs--One Eighth to my Executors hereinafter named in trust, the income from the same to be paid in Quarterly payments to my son John N. Robinson for the term of his natural life, and after his death.I give, devise and bequeath the said One Eighth to his heirs.”

By his will the testator further provided: “ Eighth.I authorise and direct my Executors hereinafter named to sell and convey any of the property hereinbefore described that I have devised in trust, except my homestead premises in Nuuanu Valley, whenever they shall deem it best and expedient for the interest of my Estate, and to invest the proceeds thereof for the uses and purposes of the trusts hereinbefore declared.

“ Ninth.I ordain and appoint my Sons - in - law Curtis P. Ward and Samuel C. Allen and my Son Mark Robinson, as Executors of this my last Will and Testament, and Guardians of my Children who may be minors at the time of my decease, and Trustees of all the property which I have heretofore devised in trust for the uses and purposes therein set forth, and they shall not be required to give bonds for the performance of the trusts aforesaid.”

The plaintiff, after alleging that it is the owner in fee simple of an undivided 466/2880ths interests in said land, by the third paragraph of its complaint deraigned title thereto as follows: “That Plaintiff obtained its title to said undivided 466/2880ths' interest in the said land by deed from Lani Booth, Mellie E. Hustace, Lucy K. Ward, H. Kulumanu Ward and V. Kathleen Ward who are heirs of Victoria Ward and Matilda Foster and by deed from Victoria Ward, one of the heirs of Mary Foster, Bathsheba Allen and John N. Robinson, being the same persons named in Paragraph Seventh of the Will of James Robinson, a copy of which is attached hereto marked Exhibit ‘A’ and incorporated herein by reference and which said Will was probated in the Supreme Court of the Territory of Hawaii as ProbateNo. 1204; that James Robinson obtained his title by deed from the original grantee, W.Lane, which said deed is recorded in the Bureau of Conveyances in Book 36, page 105.”

By their amended answer to the complaint the defendants admitted formal allegations and that they were in possession of and claimed that the defendantZions Securities Corporation is the owner in absolute fee simple of all of said land except approximately 6.5+ acres, owned and claimed by others, and that the defendantKahuku Plantation Company occupies the land owned by its codefendant by virtue of a lease from its codefendant and that it occupies 0.178 acres as owner thereof.They denied all other allegations and gave notice that they intend to rely upon the defense of adverse possession of said land for the full statutory period and also upon the plaintiff's laches, acquiescence, estoppel, res adjudicata, abatement, estoppel by deed, and waiver of any claim in and to said land or any portion thereof.

Trial by jury having been waived, the circuit judge before whom the cause was tried, in his written decision, sustained the claim of the defendants and judgment was entered in their favor.The cause is here on plaintiff's bill of exceptions.

The facts, in addition to those already stated, may be summarized as follows: Shortly after the death of James Robinson in 1876, his will was duly admitted to probate in this court and the three men named by him to be executors and trustees qualified as executors and entered upon their duties as such.In March, 1878, they filed a petition for approval of their attached account but did not allege that said account was a final account or that they had done all things required of them as executors or pray for a distribution to them as trustees of the properties devised to them in trust.The account was approved.No order terminating administration and distributing the estate to the trustees was entered.Thereafter, they and the survivors of them at irregular intervals filed accounts in the probate court up to 1909, in which they quite generally referred to themselves as trustees instead of as executors.However, the court and the masters appointed to examine the accounts almost invariably referred to them either as executors or as executors and trustees.In 1909 the sole survivor of the executors and trustees filed accounts in probate for the years 1903 to 1909.These accounts disclosed a sale of the land of Waiono to J. B. Castle in August 1905 for $3000.These accounts were referred to Henry Smith as master, who in his report advised the court that of the $3000 received for the land of Waiono one eighth thereof, or $375, had been distributed to the heirs of J. N. Robinson, one of the life beneficiaries named in the seventh paragraph of the will, who died in 1890, and that receipts from all of his heirs for their prorata shares of the purchase price were on file.He also called the court's attention to the fact that there had been no formal closing of administration and that the “fiduciary has, for short, signed his official title as ‘Trustee’ only, whereas I believe the full title of his office is as ‘Surviving Executor of, and Trustee under, the Will’ etc.”Victoria Ward, the plaintiff's grantor, was one of the heirs of J. N. Robinson and she receipted for her prorata share of the proceeds of the sale of the one-eighth interest in the land of Waiono, her receipt reading as follows:

+---------------------------------+
                ¦“20.84¦Honolulu, March 12th, 1908¦
                +---------------------------------+
                

“Received from The Estate of James Robinson, the sum of Twenty & 84/100 Dollars, same being my One Ninth Share of the One Sixteenth undivided Interest, of the Estate of J. N. Robinson, deceased: in the Real Estate property at Waiono, Koolauloa, Island of Oahu; sold by the Trustee of the Estate of James Robinson, to James B. Castle, for the sum of $3,000.00, August 31, 1905.

+--------------------+
                ¦(s)¦Victoria Ward.” ¦
                +--------------------+
                

All of the facts reported by the master are borne out by the...