9 Haw. 113 | Haw. | 1892
Opinion of the Court, by
The opinion of the Chief Justice, upon which the decree dismissing the bill is based, is as' follows :
This is a bill for specific performance. The substantial facts are as follows-: The plaintiff, Kaahanui, is the widow of one Henry Gordon who deceased intestate in 1879. The defendants Margaret and Maria are his daughters and surviving heirs at law. On the 1st November, 1880, the widow, and her then husband, Maria, Margaret and Emeline, with their respective husbands, signed a power of attorney to Mr. A. J. Cartwright, empowering him “ to represent ns and each of us in the settlement of the estate of the late Henry Gordon now pending in the Supreme Court of the Hawaiian Islands and also upon the settlement of the said estate, to receive from Wm, R>. Castle, the administrator of the estate of the said Henry Gordon or his successors, our and each of our
It is claimed by the defendants that the agreement to
By reference to the records of the probate court in evidence, the plantation interest of the deceased intestate was ;sold by order of court and tbe proceeds distributed by the •court on the 4th May, 1881, as follows: The widow to take one third of the personal property absolutely and her dower in the realty as may be apportioned, and the children two-thirds of the personal property and the whole of the realty ■absolutely, and the question of Emeline’s share t© be considered. The amount of money which each heir should have was not to be determined by the attorney under the letter of ■attorney, but by the court.
But the attorney was to receive and receipt for the shares of each and to hold them subject to their order. Was he authorized to do any more? I think not. The language used, “ to make such arrangements and settlements in regard to the -estate as he shall deem best for their interest,” does not confer upon tbe attorney tbe power to bind tbe heirs by an agreement that the widow should have the Lahaina land in fee as part of her dower. The object -of tbe letter of attorney was to empower tbe attorney to act for tbe heirs in the settlement of the -estate. It was mainly partnership
I have come to the conclusion that the agreement cannot be enforced and therefore dismiss the hill.
By the Court,
We affirm the decree appealed from upon the reasoning of the foregoing opinion, and upon the following additional grounds.
Mr.. Cartwright represented all of the parties in interest except Eli Gordon, under the power of attorney referred to. This was adequate authority for him to represent his principals in dealing with matters which affected their interests in the same way, such as negotiating with the partner of the deceased, if he did so negotiate with him, for the sale of the interest of the deceased in the partnership. But when he attempted to deal with matters in which the interests of his principals were hostile to each other, such as apportioning the widow’s dower, he could no longer equitably act as the agent of them all, unless it should appear affirmatively that the parties fully intended the transaction as it took place and understood its nature, which is' not the case. Though such a transaction is not void ab initio, the parties have the right within a reasonable time to avoid it. The rule is well settled both in England and the United States that a contract made by one who acts as the agent of both parties is voidable in a court of equity at the election of either principal. (N. Y. Cen. Ins. Co. vs. Nat. Pro. Ins. Co. 20 Barb. 470; Story on Agency, 7th ed. sec. 211, n. 1.)