23 Haw. 457 | Haw. | 1916
OPINION OF THE COURT BY
The record in this case shows, inter alia, that on the 30th day of November, 1915, Jonah Knhio Kalanianaole, on his own behalf and as next friend of Liliuokalani (former Queen of Hawaii) filed a bill in equity averring mental weakness on the part of the Queen, and a conspiracy and undue influence on the part of the respondents Iaukea and Dominis, resulting in the execution by the Queen of a certain deed of trust, on the 2d day of December, 1909, under which the said Iaukea and Dominis were among the beneficiaries, and certain subsequently executed instruments purporting to confirm and supplement the trust deed. The prayer of the bill was that all said instruments and a certain power of attorney given by the Queen to said Iaukea be annulled and cancelled, and that the trustees be directed to reconvey and deliver the property described in the deed to the Queen. Upon the bill process issued by direction of the circuit judge. On December 16, Mr. Antonio Perry entered his appearan'ce as attorney for the Queen, and, on December 30, filed, on her behalf, a discontinuance and motion to dismiss based upon the affidavit of the Queen “that the said bill of complaint herein was filed and the above entitled suit was instituted without her authority,
“Pursuant to the decision of the court filed herein on the 7th day of February, 1916, and the leave to amend therein granted, by way of supplement and amendment to her discontinuance and motion to dismiss heretofore filed herein, and not waiving her contention and claim that the said discontinuance and motion to dismiss are sufficient of themselves without this.express denial of mental incompetency and assertion of mental competency, the above mentioned Liliuokalani, in whose name and behalf the above entitled suit purports to be brought by an alleged next friend, does hereby deny the truth of any and all charges, direct or indirect, that may be contained in the bill of complaint herein filed in the above entitled court and cause by Jonah Kuhio*460 Kalanianaole in his own behalf and as her alleged next friend or that may be otherwise howsoever made herein, that she is or at the time of the institution of this suit was of unsound mind or mentally incompetent to protect her interests in this suit or in the property involved herein and does hereby claim and assert that at the time of the institution of the above entitled suit she was,'ever since has been and now is of sound mind and mentally competent to terminate, withdraw and discontinue this suit and the bill of complaint herein, to do all things incidental to the preparation and prosecution of the discontinuance and motion herein filed by her, to protect all of her interests in this suit and in the property involved herein, to transact all other matters of business and to take all other action whatsoever.
“And all of this the said Liliuokalani is ready to prove and asks an opportunity to prove, — without waiving her claim that the burden is, not on her to prove her sanity or mental competency, but on anyone, who alleges that she is insane or mentally incompetent, to prove the said alleged insanity or mental incompetency.
“Liliuokalani.
“Dated, Honolulu, T.H.,
“February 8th, 1916.
“Territory of Hawaii,
City and County of Honolulu,
“The aforesaid Liliuokalani being first duly sworn, on oath deposes and says that she has read the foregoing document and knows the contents thereof and that the matters and things therein stated and set forth are true, of her own knowledge.
“Liliuokalani.
“Subscribed and sworn to this 8th day of February, 1916.
“W. J. Robinson
“Notary Public, First Judicial
Circuit, Territory of Hawaii.”
(Notarial Seal.)
This, was accompanied with a notice to counsel for the complainants that the court would be asked “to set a time for the holding of the inquiry into and the taking of evi
“That at the time when said instrument, Exhibit A” (the trust deed) “was made and executed, and at all times since up to the time of this amendment, the said Queen was not of sound mind and was not mentally competent to make said alleged deed of trust (Exhibit A) and to make and execute the other instruments thereafter referred to in this bill, or any of them; and that she is not mentally competent to protect her interests in this suit or in the property involved herein, and to employ counsel, and to do all things incidental and necessary to the prosecution of the said suit, or any of these things, and that it is necessary that some proper person should be appointed as her next friend and guardian in this litigation,” also to amend the prayer by inserting the clause
“That a next friend or guardian ad litem, be appointed by this court for the said Queen, who shall act for and in behalf of the said Queen in this matter.”
The court allowed the amendment to be made to the bill; granted the Queen’s motion that she be dismissed as a party complainant; held that as she was a necessary party to the suit she should be made a respondent, and directed that the transposition be made; continued Mr. Andrews as guardian ad litem for the Queen; and said that the matter of Mr. Perry’s authority to further appear in the case would probably be taken up thereafter. In the meantime Mr. Andrews, as next friend of the Queen, had reported to the court that, among other things, he had been informed by the Queen that she had not employed Mr. Perry to represent her. On March 30, Mr. Andrews, as guardian ad litem, filed a petition in which, after reviewing the proceedings had with reference to his appointment as next friend and as guardian ad litem, he stated,
“That your petitioner, after conversing with said Liliu*463 okalani and carefully examining a number of witnesses as to the alleged making of the trust deed in the year 1909, which is the subject of this controversy, and as to the present condition of said Liliuokalani, is satisfied that not only was the said trust deed as made and executed an improper and improvident deed, but that it is clear that said deed was not the act and wish of said Liliuokalani but due to the control exercised over her by others, and that at the time of the making of said deed she was in no physical or mental condition to make the same or understand the provisions thereof, and that she did not understand the provisions thereof; but that also her present condition is such that she is incapable of understanding the proceedings that are being carried on, or to guard her rights; or to act other than under the influence of those in whose control she is, and that she is incompetent to defend herself in courts of law in her proper person;”
and prayed that he be allowed to file, on the Queen’s behalf the answer and cross bill attached to the petition, and to present proof of the allegations made therein. Thereupon the circuit judge made and entered an order confirming the appointment of Mr. Andrews as guardian ad litem for the Queen, and that he be allowed to file the answer and cross bill, and directing that the same be served upon the attorneys for the several respondents and upon the attorneys for the complainant within twenty-four hours, and that the respondents and complainant answer thereto within ten days after service. The answer and cross bill, which was filed, admitted and adopted all the averments contained in the amended bill of the complainant; averred that the Queen, at the time of the making of said deed of trust and other instruments, by reason of the progressive weakness of old age and her impaired mental faculties was not of sound mind or mentally capable of making said deed and other instruments or of understanding the contents and effect thereof; and was entirely under the influence and control of the said respondents Iaukea and Dominis; and prayed that said instruments be annulled and can-
The case comes to this court upon an appeal perfected by the Queen. The first question to be determined is whether the appeal lies. This point is intimately connected with the next one to be taken up, that is, whether the question of the Queen’s present status should be inquired into and determined in limine. Counsel for the complainant contend that no final order was made by the circuit judge and that the appeal should therefore be dismissed. The statute provides that “Appeals shall be allowed from all decisions, judgments, orders or decrees of circuit judges in chambers, to the supreme court, except in cases in which the appellant is entitled to appeal to a jury.” R. L. 1915, Sec. 2508. The uniform construction of this provision has been that to be appealable the order or decree in question must have been a final one. But this construction has been
In the case at bar, after the Queen had been made a
The next point is as to whether the question as to the present status and condition of the Queen should have been taken up and decided by the circuit judge before any further steps were taken, and whether he was in error in postponing its consideration. We have found little in the books, other than dicta, which throws light on the subject, though upon principle the answer seems clear. Counsel for the complainant contend that it was within the discretion of the circuit judge to take the matter up in limine or to consider and pass upon it in connection with the proofs upon the merits of the case. They refer to the cases of Lindly v. Lindly, 109 S. W. (Tex.) 467, 102 Tex. 135; Holland v. Riggs, 116 S. W. (Tex.) 167; Kroehl v. Taylor, 69 N. J. E. 525; Smith v. Smith, 106 N. C. 498; Snowden v. Smith, 119 S. W. (Ky.) 785, and other cases. In the Lindly case the court of civil appeals said, “It was a matter of discretion with the trial court as to whether he would inquire into the mental condition of Sally Lindly in limine, or hear the evidence, and submit the question to the jury along with the other issues in the case,” but there was no discussion of the principle involved either by that court or the supreme court of Texas. We think the other cases cited do not go to the full extent of sustaining the contention made in the case at bar. Counsel for the Queen repeatedly urged in the court below that the issue having been raised by the Queen’s assertion it should be considered and decided in limine, and he now contends that the refusal of the circuit judge to adopt that course was reversible error. The contention would apply with equal force whether the Queen be a complainant or a respondent. In the case of Howard v. Howard, 87 Ky. 616, 622, the court said,
“The law presumes all persons to be of sound mind, and*469 if adults, capable of managing their own affairs; and the mere fact that it is alleged by a person styling himself next friend, that a particular individual, who is an adult, is of weak or unsound mind, and not capable of taking care of his own affairs, does not destroy that presumption. But where the action is brought in the name of the person alleged to be of weak or unsound mind, by his next friend, against parties having an interest in the subject-matter, it is to be presumed, in the absence of anything appearing to the contrary, that whatever consent such person is capable of giving to the bringing of the action has been obtained; and that it is in fact his suit, for it is really in his name; and that he has obtained the consent of a friend, as the most competent person by whom he wishes his case to be conducted, in order that his rights may be the better protected. But if he makes known to the court that it is not his suit; that he is competent to take care of his own affairs; that the supposed friend is in fact an intermeddler, the court in such a state of case is presented with the question: What is the proper course to pursue?”
And it was pointed out that the question should be determined in limine. That case was referred to with approval in Isle v. Cranby, 199 Ill. 39, 47. In Whetstone v. Whetstone’s Ex’rs., 75 Ala. 495, 501, the court said,
“We have said that the right of a mere volunteer to institute a suit as next friend of a non-adjudged non compos rests under limitations. * * * The welfare and interest of the alleged non compos are matters of prime, dominating importance, and should receive the careful consideration of the court, before the litigation is allowed to progress. These preliminary inquiries should be first instituted; and to this end the chancellor may require the verdict of a jury, or a report from the register, so as to properly inform his conscience.”
See also Campbells v. Bowen, 1 Rob. (Va.) 241; Lee v. Ryder, 56 Eng. Reprint 1103; Denny v. Denny, 8 Allen 311. Doubtless an ex parte allegation of insanity or mental incompetence, or of mental weakness and undue influence destroying free agency, would warrant a court in appoint
Counsel for the Queen further urges that, in the event that this court shall sustain the appeal and find reversible error in the record, and if it should be of the opinion that the demurrer of the Queen to the bill of complaint ought to be sustained, it would be appropriate for this court to so express itself, especially as the circuit judge, when striking the demurrer from the files, had stated that he otherwise would have overruled it. And counsel points out that if this court should believe that the demurrer ought to be sustained a long, expensive and useless trial might be obviated by making a ruling in accordance with his contention that Kalanianaole, as sole complainant, is not entitled to maintain the suit since he has no interest in the subject-matter thereof. We think this position is sound. As, upon the views above expressed, there must be a reversal and further proceedings, we believe that we should
The property conveyed is averred in the bill to be that of the Queen, and the prayer is that it be reconveyed to her. There is no averment that the complainant has any present interest in the property, but merely that he is the Queen’s “only next of kin and heir at law.” It is elementary that in order to maintain a suit in equity the complainant must have an interest in the subject-matter of the suit, and that a bill is demurrable which fails to show such interest. Palau v. Helemano Land Co., 22 Haw. 357; 1 Beach, Mod. Eq. Pr., Sec. 261. The next of kin of a living person has no estate or interest at law or in equity in the property of that person, and may never have any, for the owner may dispose of the property during his lifetime or devise it to others by will. The next of kin may not outlive the owner of the property. “The title of an heir is called into existence by the death of the ancestor, for nemo est haeres viventis.” 3 Washburn, Real Prop. (4th ed.), 6. And until the ancestor dies the heir apparent or presumptive has nothing more than a mere possibility, expectancy or hope of succession unfounded in any legal act whatever. 22 Am. & Eng. Enc. Law (2d ed.) 1034. See Dursley v. Fitzhardinge, 6 Ves. 251, 260; Allan v. Allan, 15 Ves. 130; In re Parsons, L. R. 45 Ch. Div. 51, 57; In re Bartles, 33 N. J. E. 46; Youngs v. Heffner, 36 Oh. St. 232, 238. The case of Sellman v. Sellman, 63 Md. 520, was a suit to set aside a conveyance made by a feeble minded person under the undue influence of the grantee. The complainants were the children and grandchildren of the grant- or. A decree sustaining a demurrer and dismissing the bill was affirmed,, the court saying (p. 522),
“It is a fundamental principle of equity pleading that, to entitle a party to sustain a bill, he must show an interest*473 in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it; and if such interest or right to sue be not fully shown by the bill itself, the defendant may demur. * * * And this being the requisite in pleading, the complainants, upon the maxim nemo est haeres viventis, can have no standing in court; for that maxim is of equal force in equity as at law. The children and grandchildren of a living ancestor cannot claim a right or maintain a suit in respect to the property of that ancestor, while their interest in such property is merely in expectancy, depending upon a future inheritance that, by possibility, may never occur. The principle is, both at law and in equity, that no one is entitled to be recognized as heir until the death of the ancestor, or the person from whom the descent may be cast; and the fact that such ancestor or other person may be alleged and admitted to be non compos mentis, or otherwise incapable of managing his estate, makes no exception to the general principle.” See also Bradford v. McKenzie, 43 Atl. (Md.) 923.
We think it is clear, therefore, that Kalanianaole, as sole complainant, may not maintain the suit since he has no interest in the subject-matter.
Having gone this far, we are impelled to go further. We believe that some of the mistakes which have been made in this case have resulted from an error made by this court. In discharging the temporary writ of prohibition which the Queen had sued out we held — and properly so — that the bill of complaint did not aver insanity on the part of the Queen, but mental weakness and undue influence which presupposes mental competency; but we erred in holding that the Queen was therefore entitled to discontinue the suit as she had done. The writ was properly discharged since the circuit judge was not proceeding without jurisdiction, but our reasoning did not reach the root of the matter. It was averred in the bill that the Queen is of the age of seventy-seven years; that her memory has been seriously impaired by bodily infirmities, worry and anxiety; that the
The appointment of Mr. Andrews as guardian ad litem was not authorized as the facts upon which the authority of the court to make such an appointment depended were in controversy and remained undetermined. The answer and cross bill filed by the guardian ad litem should have been stricken from the record. The Queen was dismissed as a complainant and made a party respondent at the time that the amendment to the bill purporting to aver mental incompetency in the Queen was allowed. And assuming
The circuit judge may entertain an application by some one asking leave to act as next friend of the Queen for the purpose of having her reinstated as the complainant in the case under the original bill, and, in that event, the question as to her present status and right to control the suit, or whether a next friend should be appointed for her, should be heard preliminarily.
The ruling and order appealed from is reversed, and the cause remanded to the circuit judge for further proceedings not inconsistent with the views expressed in this opinion.