Von Holt v. Carter, 6438.

• Decision Date: 15 February 1932
• Docket Number: No. 6438.,6438.
• Citation: 56 F.2d 61
• Parties: VON HOLT v. CARTER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.2d 61 (1932)

VON HOLT v. CARTER et al.

No. 6438.

Circuit Court of Appeals, Ninth Circuit.

February 15, 1932.

Ulrich & Hite, of Honolulu, Hawaii, and Carl W. Carlsmith, of Hilo, Hawaii, for appellant.

Smith, Warren, Stanley & Vitousek, L. J. Warren, W. L. Stanley, and R. A. Vitousek, all of Honolulu, Hawaii, for appellee Trent Trust Co.

H. T. Kay, of Honolulu, Hawaii, for appellee E. J. Knight Bernieri.

A. G. M. Robertson, A. L. Castle, and A. Withington, all of Honolulu, Hawaii, for appellee Carter.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

SAWTELLE, Circuit Judge.

This is a suit in equity to compel performance of a trust and distribution of a legacy.

Annie T. K. Parker Smart was the owner of valuable property, both real and personal, in the territory of Hawaii. On April 25, 1912, she executed a deed of trust whereby she conveyed to a trustee her entire estate, reserving, however, a monthly income during her lifetime. She died testate on November 17, 1914. Her will was duly admitted to probate in the circuit court of the First judicial circuit of the Territory of Hawaii. Provisions were made therein, upon certain conditions therein set forth, for the disposition of the estate at the termination of the said trust to designated beneficiaries, including Frederick S. Knight, her stepfather.

This suit was instituted by appellant testator Knight to establish his claim as one of the named legatees. Upon his death, his administrator, with will annexed, was substituted as complainant. The suit involves merely the construction of the language of the will of the testatrix. Both the circuit court and the Supreme Court of the Territory of Hawaii, 31 Haw. 535, decided adversely to appellant's contention.

The decree of the Supreme Court appealed from was entered and filed on September 30, 1930, and the petition for the allowance of the appeal, together with the assignments of error, was filed with the Clerk of the Supreme Court on December 30, 1930. The petition was not presented for allowance, or allowed by, the Chief Justice or any of the justices of the Supreme Court within three months after the entry of the decree. On February 9, 1931, appellees made a motion to disallow the appeal for the following reasons: (1) Said petition was not filed within three months after the entry of the decree referred to therein; (2) no petition or application for appeal was presented to the Chief Justice or any justice of the Supreme Court authorized to act thereon within three months after the entry of said decree; (3) no petition or application for appeal was presented to the Chief Justice or any justice of the Supreme Court authorized to act thereon and acted upon by such within three months after the entry of such decree; (4) no bond on appeal has ever been approved by any such justice.

Affidavits were filed in support of and in opposition to said motion. In the affidavits made by the attorneys for appellant, it is stated that the petition was filed on December 30, 1930, with the clerk of the Supreme Court of the territory of Hawaii, and that affiant "did inform said Clerk that said petition was then and there filed for presentment to the Honorable Antonio Perry, Chief Justice of said court, and that said Clerk did then and thereupon accept for filing and presentment as aforesaid said petition, and did then and thereupon place upon said petition the filing mark and stamp of said court."

The affidavit of the clerk of the court on that subject is as follows:

"That the said attorney for appellant did not at the time aforesaid or at any time inform him, the affiant, that the said petition was filed for presentment to the Honorable Antonio Perry, Chief Justice of said court, or to any of the Justices of said court, and that he, the affiant, did not accept and/or file the said petition for presentment thereof as aforesaid or with any understanding that he, the affiant, would present the same to the said Chief Justice or to any of the Justices of said court.

"That no request was made upon him, the affiant, by the said attorney for appellant, at the time of the filing of said petition for appeal as aforesaid, or at any time, for the presentment of said petition to the said Chief Justice or to any of the Justices of said court, and that at the time of the filing of said petition the said attorney for appellant made no reference whatsoever to the matter of the presentment of the same, and made no statement in regard to the said petition other than that in regard to the matter of a bond he would await the return of W. L. Stanley — said W. L. Stanley being one of the counsel for Trent Trust Company, Limited, respondent-appellee, and who was then absent from the Territory."

Hearing upon the motion was had on March 13, 1931, and the Chief Justice, as disclosed by the minutes of the court, stated: "A motion is presented to disallow the appeal of petitioner from the decision and decree of the Supreme Court of Hawaii to the United States Circuit Court of Appeals for the Ninth Circuit. The merits of the motion I do not consider or decide but leave the question to be determined by the Appellate Court. The appeal is allowed and the bond is fixed in the sum of $500.00."

Appellant, in his brief, contends that the "petition for allowance of the appeal, together with the assignment of errors on appeal,...