14 Haw. 527 | Haw. | 1902
Tbe complainant, administratrix of the estate of John W. Ivaikainahaole, deceased intestate, by bill in which the facts are averred in detail, asks a court of equity to restrain the respondent, who is the mortgagee in a certain mortgage executed by the decedent in his lifetime to- secure the payment of a promis sory note for $2,500, from foreclosing the mortgage and from selling the mortgaged premises on the ground that the claim of the mortgagee was not presented to. the administratrix within six months from the day of the first publication of the statutory notice published by her to creditors or within six months from the day when the note and mortgage became due and that therefore such claim is barred by the statute (Section 1525, Civil Laws) and the mortgagee is powerless to foreclose his mortgage. The administratrix also prays that she “may be fully advised and instructed by this Honorable Court, whether, in law, or in equity, she, as such Administratrix as aforesaid, should be held or permitted to pay such promissory note, or to in any manner satisfy or discharge the said mortgage? "Whether the said Estate of John "W. Kaikainahaole is in anywise, and, if at all, in what manner, and to. what extent, liable to said defendant in the premises? Whether said mortgaged premises are in anywise, and if at all, in what manner, and to. what extent, and upon what conditions, liable to sale under or by virtue of a foreclosure of said mortgage, either as a means of paying the principal, or the interest, or both the principal and the- interest represented by said promissory note, or otherwise, or at all?”
Upon the filing of the bill and an approved bond in the sum of $250 conditioned for the payment by the complainant, in case the injunction should be thereafter dissolved, of all costs, charges and damages suffered by respondent by reason of its issuance, a temporary injunction was issued enjoining the respondent from selling the mortgaged property at foreclosure sale, but this injunction was dissolved and the bill dismissed by final decree.
The complainant’s bill was framed upon the theory that a
Counsel for the complainant recognizes' the applicability of that decision, but contends that i't is: erroneous and asks that it be overruled. The law as laid down in that case has been a rule of property here for thirty years and is in accordance with the preponderance of authority elsewhere. It is unnecessary to set forth the various reasons which have been stated in support of the rale. No sufficient ground has been shown for overruling the decision.
Regarding merely as a bill for instructions, the bill cannot be sustained. "While it is true that trustees may, under certain circumstances, come into a court of equity to’ seek advice and instructions, concerning their duty in the administration of the trust, we think that this is not such a case. The questions of law asked by the administratrix are such as can be readily answered by counsel. She is entitled to obtain from an attorney the desired advice at the expense of the trust estate. See 27 Am. & Eng. Encycl. Law 153 and Greene v. Mumford, 4 R. I. 313, 321-323.
The decree appealed from requires the complainant to pay the respondent the sum of fifty dollars as an attorney’s fee necessarily incurred by the respondent in securing the dissolution of the temporary injunction. On this point the decree was made
The decree appealed from, in so far as it orders the dissolution of the temporary injunction and the dismissal of the bill, is affirmed, and in so' far as it relates to the attorney’s fee, is reversed, without prejudice to the respondent’s right to take such further proceedings as he may be advised are proper to recover such damages, secured by the bond, as he may be entitled-to, and the cause is remanded to the Circuit Judge for such further proceedings as may be proper in conformity with this opinion.