De Mello v. De Mello ( 1939 )

  John J. De Mello, the surviving husband of Maria Julia De
Mello, after the death of his said wife filed a bill in the
circuit court of the first circuit against the executor of his
said wife's will, her five surviving children and the issue of

a deceased child to declare a trust in petitioner's favor in
certain real estate standing in the name of his deceased wife at
the time of her death. It is alleged and admitted that petitioner
married his said wife on the 18th day of November, 1910; that at
said time he was a widower and she a widow; that he had nine
children by his former marriage and that she had six children by
her former marriage; that on January 22, 1912, petitioner
acquired title to lots 3 and 4, block 12 of the Kaimuki tract,
having theretofore purchased them under agreement of sale; that
on the 26th day of September, 1913, petitioner caused said lots
to be conveyed to his said wife; that on the 23d day of
September, 1934, the said Maria Julia De Mello died, leaving a
will which was admitted to probate, copy of which is attached as
an exhibit to the bill.
  It is also alleged by petitioner but denied by the respondents
that petitioner's wife "urged and prevailed upon petitioner to
convey to her the said hereinabove described real property, and
that the said Maria Julia De Mello promised and orally agreed
that if petitioner did convey said property to her, she, the said
Maria Julia De Mello, would make a last Will and Testament
whereby she would leave all of this real property to him, the
said petitioner, but that if he, the said petitioner, predeceased
her, then she would devise said property to his children by his
first marriage." It is further alleged by petitioner but denied
by respondents that in reliance upon said promise and oral
agreement and in consideration thereof and placing full trust and
confidence in his said wife, he made the conveyance of said real
property to her; that after said conveyance he paid out and
expended upwards of $10,000 to improve said property and increase
the income therefrom; that on numerous occasions after said
conveyance the said Maria Julia De Mello assured petitioner that
she had made and executed a will in accordance with her promise
and oral

understanding and that he, the petitioner, was named sole devisee
of the above-described real property but that if he predeceased
her the property would descend to his children by his first wife;
that he, believing her assurance given him, never doubted or had
occasion to doubt that she had made and executed her will in
accordance with the terms which she had promised and to which she
had orally agreed until after her death when he saw the will
which was admitted to probate; that notwithstanding the promise
and oral agreement the said Maria Julia De Mello, in fraud upon
the rights of petitioner and in violation of her said promise and
oral agreement, devised said property to her own children,
leaving petitioner with but a life interest therein and leaving
his children no share or interest therein; that his said wife
made said promise and oral agreement never intending to keep said
promise and abide by said oral agreement and therefore committed
a fraud upon petitioner, and that but for said promise and oral
agreement he would not have transferred and conveyed the legal
title to his real property to his said wife.
  The prayer of petitioner was that a trust in favor of
petitioner be declared; that he be given the legal as well as the
equitable title to said property; that he be placed in possession
thereof and that an accounting be had of the rents and profits of
said property since the death of the said Maria Julia De Mello.
  In addition to the admissions and denials above the
respondents, in their answer to the bill, alleged that said lots
were conveyed to Maria Julia De Mello by petitioner on or about
January 22, 1912, by reason of financial assistance furnished by
her to petitioner and in order to protect and preserve said real
property from petitioner's creditors and because of love and
affection and in order to induce her to contribute her moneys and
assets and labor and management to the improvement, operation and
maintenance of

the same and to the payment and redemption of a mortgage on the
same, all of which things were done and accomplished by her with
the result that she and petitioner were able to maintain
themselves largely from the rents of said property, to maintain
their home thereon and keep the same free from the claim of
petitioner's creditors during the many years of their married
life. All of the foregoing is alleged to constitute a good and
valuable consideration for said conveyance and it is alleged that
by reason thereof the legal and equitable title to said property
was vested in the said Maria Julia De Mello at the time of her
death and that she legally and properly disposed of the same by
her last will and testament.
  The pleadings do not correctly state the effect of Mrs. De
Mello's will. The second paragraph of her will, copy of which is
attached to the bill and admitted to be a true copy, shows a
devise of a life estate in the lands in question to her husband,
the petitioner. The third paragraph of said will is in part as
follows: "After the death of my said husband, if he pre-decease
me, I will and bequeath to my children the whole of my estate,
wherever situate," etc. There was no specific disposition of the
fee in the real estate in which petitioner was given a life
estate and no attempted disposition thereof except by the
residuary clause above quoted. The taking effect of the residuary
clause was made contingent upon petitioner predeceasing the
testatrix. Since that contingency did not happen, the residuary
clause failed and she died intestate as to all of her estate
except the life estate which she devised to petitioner.
(Thompson, Wills [2d ed.], § 260, p. 336.) The residuary clause,
had it not failed, would have given the remainder to the same
persons who take as heirs-at-law.
  Petitioner John J. De Mello died testate prior to the hearing
on his bill and John J. De Mello, Jr., executor of his will, was
substituted as petitioner. Prior to the death

of the petitioner his evidence was perpetuated and the transcript
thereof filed as an exhibit at the trial.
  The documentary evidence introduced shows the following:
January 22, 1912, conveyance of the lots in question by Kaimuki
Land Company to John De Mello for a recited consideration of $800
and a mortgage of the same date by John De Mello to the company
for $755, which was released June 20, 1913. June 24, 1912, a
conveyance of the same lots by John De Mello to his wife for a
recited consideration of $800. This deed was, under the law then
in force, void. (Cummins v. Wond, 6 Haw. 69.) September 26,
1913, deed from John J. De Mello and wife to W.D. Anderson who,
on the same day, for a recited consideration of $1, conveyed the
same lots to Mrs. De Mello who, on the same day, mortgaged one of
the lots to the Mutual Building  Loan Association to secure a
loan of $1000. This mortgage was released February 9, 1914.
February 17, 1914, mortgage by Maria J. De Mello of one of said
lots and lot 11 of the Auwaiolimu lots to the Mutual Building
Loan Association to secure a loan of $5000. On the following day
John De Mello became a member of said Mutual Building  Loan
Association, obligating himself to pay $75 per month on account
of the foregoing mortgage. His passbook, which was introduced in
evidence, shows that he made six payments of $75 each that year
and four the following year, three for $75 each and one for $50.
There is an unexplained penciled memorandum in said passbook
showing three payments by the Waterhouse Trust Company in
December, 1918, and January and February, 1919, for $75 each. Lot
11 of the Auwaiolimu tract was released from the above mortgage
March 19, 1920, and the other lot, being one of the lots in
question, was released June 26, 1920. June 25, 1920, a mortgage
by Maria J. De Mello of one of the lots in question and said lot
11 to E.H.F. Wolter, trustee, to secure a loan of $3000, which
mortgage was released February 19,

1921. Said documentary evidence also shows that on June 17, 1912,
John J. De Mello gave to H. Hackfeld  Company, Limited, a
chattel mortgage on his Kona business to secure the sum of $4000
and that on the following day Julia De Mello mortgaged her lands
at Kukuau, Hilo, to Serrao Liquor Company to secure a loan of
$305 and on July 9, 1913, she conveyed said lands to John Vierra
for $1000 and on the same day John J. De Mello conveyed certain
of his lands in South Kona to M.S. Carreira for $1050. On January
14, 1914, John De Mello conveyed to Manuel S. Deponte the Kona
properties mortgaged to Hackfeld and as part of the consideration
therefor Deponte assumed the payment of the Hackfeld mortgage and
on the same day conveyed to Julia De Mello lot 11 of the
Auwaiolimu tract above referred to. The Auwaiolimu lot was sold
in two parcels, one on March 18, 1920, for $2050 and the other on
February 19, 1921, for $2050. In all of the foregoing mortgages
and conveyances by Mrs. De Mello her husband joined and in all by
him she joined. Other documentary evidence consisted of various
rent receipts, all signed "J.J. De Mello," acknowledging payment
of rents for portions of the property in question, a contract of
petitioner as contractor for the building of a house in 1921 and
a bankbook of petitioner showing deposits aggregating $3820 from
May, 1919, to February, 1921.
  The evidence offered to establish the alleged promise and oral
agreement of Mrs. De Mello to will said property to petitioner
consists of the evidence of the original petitioner and the
substitute petitioner. Mr. De Mello, Sr., testified that his
business got slack and he could not make any more payments. He
told his wife that the property was not secure in his hands. His
wife begged him to put it in her hands. "I done it for
safekeeping. I told her, I says `I can't afford to give you this
property.' She said, `Oh, give it in my hands; when I die I deed
it back to you.'" He then

testified that he thereupon deeded the property to her and that
she, on many occasions thereafter, told him, "Don't worry; when I
die this goes back to you." Mr. De Mello, Jr., testified that he
was with his father and stepmother when they were discussing the
transfer of title to said property to her and that she said, "I
will hold this as a matter of security. Before I die I will * * *
give it back to you. If you die before I do, I will divide it
among your children," to which his father replied, "It is Okay
with me, if you want to do it that way." He also testified to
hearing his stepmother say to his father on many occasions, "It
is your property; it is not mine; I am simply holding it for
you."
  The only other witness called in behalf of the petitioner was a
son-in-law of Mr. De Mello, Sr., who testified in substance that
he had known the De Mellos since about 1920; that after his
marriage to Mr. De Mello's daughter he lived a close neighbor to
them and visited in their home quite often; that in about 1927
the De Mellos had a prospective purchaser for the property
involved in this suit who offered something in excess of $30,000
for said property; that he was present when Mr. and Mrs. De Mello
were having an argument as to whether or not the offer should be
accepted; that Mrs. De Mello wanted to sell but that Mr. De Mello
insisted that the offer was not sufficient and that during the
course of said argument Mrs. De Mello flurried up and said, "Well
it is your property; you can do as you please with it."
  Other evidence in support of the bill tended to establish the
allegation that petitioner expended large sums of money improving
said lots after the conveyance to his wife, the amount equaling
or exceeding the $10,000 alleged; that the Auwaiolimu lot
conveyed by Deponte to Mrs. De Mello as part of the consideration
for Mr. De Mello's Kona property was at all times treated as Mr.
De Mello's property and that he received and kept the proceeds of
the sale therefor, amounting to more than $4000; that he also
received and

kept the rents accruing from the lands in suit, paid the taxes
and other expenses of said property throughout the lifetime of
Mrs. De Mello and received and kept the proceeds of the sale of
portions of said property by her, amounting to more than $5000.
Petitioner denied that his wife gave him any financial assistance
as alleged by the respondents. He admitted that his wife told him
she was going on his bond but that he did not know whether or not
she did. This apparently referred to the time his property was
attached. He also said that she at one time gave him a few
hundred dollars for safekeeping and later took it back and used
it for her children and grandchildren.
  It cannot be ascertained from the evidence of either of the two
De Mellos whether the alleged promise of Mrs. De Mello was made
to induce the conveyance of June 24, 1912, or after said
conveyance but before the conveyance of September 26, 1913. The
time element in most of the evidence is very uncertain.
  The evidence in behalf of the respondents came from a
daughter-in-law of petitioner, a son and daughter of Mrs. De
Mello, and Harry T. Mills, Esq., the attorney who wrote Mrs. De
Mello's will and represented the executor in the probate of said
will, and the respondents upon the trial of this case.
  The substance of the evidence of the daughter-in-law was that
she married respondent's son in 1922 and that since 1923 she had
lived within fifty feet of the home of Mr. and Mrs. De Mello;
that she saw them and talked with them almost daily; that prior
to the death of Mrs. De Mello she never saw John J. De Mello,
Jr., at his father's home; that father and son "always cursed one
another" and were not on speaking terms since her marriage in
1922; that Mrs. De Mello, in the presence of Mr. De Mello, told
her that she sold her Hilo property when Mr. De Mello was
attached by Hackfeld; that she mortgaged her property and
withdrew

her money from the bank to pay Mr. De Mello's debts and that
years passed by and she had nothing to show for it; that she
heard Mr. De Mello tell Mrs. De Mello's children many times that
the property did not belong to him but belonged to their mother
and that he told his oldest son, the witness's husband, that he
did not have any interest in the property and that she heard Mr.
Mills tell Mr. De Mello that Mrs. De Mello's will gave him a life
estate only.
  The substance of the evidence of Mrs. De Mello's daughter is
that she had lived in Honolulu for twenty-three years and visited
her mother often; that she heard her mother and stepfather on
many occasions discuss their business; that she heard her mother
say to Mr. De Mello that she sold her property in Hilo and drew
her money and released him from attachment and that she wanted
her money back; that Mr. De Mello told her, the witness, in Mrs.
De Mello's presence, that he had nothing to do with the Kaimuki
property, that he had transferred it to his wife for the other
property in Hilo; that during the twenty-three years she had
lived in Honolulu she visited her mother regularly and never saw
John De Mello, Jr., at his father's home.
  The substance of the evidence of Mrs. De Mello's son is that he
has lived in Honolulu since 1920; that from 1910 to 1914 he lived
in Kona with his mother and stepfather and worked for his
stepfather until the business was sold to Mr. Deponte; that on
one occasion they left him in charge of the business and they
started to Honolulu; that about one hour after they left the
sheriff came and placed an attachment on the property; that he,
the witness, telephoned his mother at Kailua and told her of the
attachment and the attachment was released that same day; that
after he came to live in Honolulu in 1920 he visited his mother
three or four times a month; that on several occasions Mr. De
Mello told him, "You children don't need to worry about this
property; when your mother dies the property will be

all yours"; that he never in all the years of his residence in
Honolulu saw John De Mello, Jr., at his father's house.
  The substance of the evidence of Mr. Mills is that he wrote
Mrs. De Mello's will; that Mr. De Mello knew he had drawn said
will and on several occasions he asked the witness to tell him
the contents of his wife's will and that he refused to tell him
until Mrs. De Mello authorized him to tell Mr. De Mello what
provision was made for him in her will; that he then told Mr. De
Mello that he would have a life interest in the property but that
he could not tell him any more "because your wife has not given
me permission to disclose anything else"; that this disclosure
was made several years before the death of Mrs. De Mello, in the
presence of Mrs. De Mello and the wife of Mr. De Mello's oldest
son. He also told of litigation between John De Mello, Sr., and
John De Mello, Jr., in which he represented De Mello, Sr., and of
the ill will that existed between De Mello, Sr., and all of his
own children, saying that he "evinced the utmost hatred for his
son and all of his children on many occasions."
  To rebut the evidence of unfriendliness between De Mello, Sr.,
and his children the petitioner's witnesses testified to the
friendly relations existing between the father and his son John.
Further detailing of the evidence seems unnecessary.
  The circuit judge, in a well-considered written opinion,
reviewed the evidence and came to the conclusion that petitioner
had failed to establish his case by the character of evidence
required in such cases. A decree was entered dismissing the bill
and petitioner has sued out a writ of error. The assignment of
errors, six in number, presents the single question whether or
not the decree is sustained by the evidence.
  The circuit judge, after reviewing the evidence, made the
following findings of fact: "I believe that there was a

general understanding between them that the property in question
should be community property for the security and protection of
both of them during their lives and that she agreed to protect
his interest to that end by her will in the event that she should
die before him. It appears that as time ran on and numerous
improvements were made upon the property by the industry of Mr.
De Mello and in part through the use and earnings of the
property, and after it had increased greatly in value, disputes
and quarrels were common between them as to the exact terms of
the agreement by which the title was vested in the wife. Parts of
the land were sold at different times and the proceeds were
apparently used to pay indebtedness against it and for its
improvement; she was apparently satisfied upon the whole with the
management of it and permitted him to have the management during
her life. In her will she protected him for the remainder of his
life by giving him a sole life interest. From the conflicting
evidence I cannot say that she ever agreed to do more than this,
nor can I feel sure that he was ever justified in expecting more.
There is very substantial evidence that at the time of the
transfer he was not on good terms with his sons; that an
unfriendly relation existed between them for sometime prior to
1913 and continued for years thereafter. I am not convinced from
the evidence that he had any thoughts in mind at the time he made
his deed of the property on September 26, 1913, looking to the
future welfare of his children by his former wife, nor am I
convinced to devise the land to his children. I cannot find that
the wife did a wrong or constructive fraud by her will or that
there are any equitable principles requiring that her devisees be
divested of the title she gave them. * * * It is clear that
petitioner knew as early as five or six years before his wife's
death that her will gave him a life interest only, and he made no
serious objection and did

nothing about it until more than ten months after her death."
  The petitioner and his son, who alone would benefit by
sustaining the bill, have both testified to the oral agreement of
Mrs. De Mello to restore title of said property to petitioner by
her will, provided he survived her. The death of Mrs. De Mello
makes direct contradiction of this testimony difficult if not
impossible but even if the testimony of the two De Mellos on this
question is uncontradicted there is still a question of
credibility which the trier of the facts and not this court must
resolve. In other words, the question of whether or not Mrs. De
Mello, whose lips are now sealed in death, made such agreement
was a question of fact to be decided by the trial judge.
(Foreman v. Foreman, 251 N.Y. 237, 167 N.E. 429.)
  It was peculiarly the province of the chancellor, who heard and
saw the witnesses testify in open court and who heard the
evidence of the petitioner, which was perpetuated before the same
chancellor prior to the trial, to determine the truth of the
controversy. A chancellor's finding of fact from conflicting
testimony heard by him will not be disturbed on review unless
clearly against the preponderance of the evidence. (Schrader v.
Schrader, 298 Ill. 469, 131 N.E. 602.) The rule as to the
weight to be given the findings of fact of the trial judge in
equity has been many times announced by this court. One of the
latest announcements is to be found in Hookaia v. Kealoha,
30 Haw. 446, where the court, after pointing out that the
complainant's conduct as testified to by her was entirely
consistent with the belief on her part that she was the owner of
the land, said: "When in addition to this the fact is that the
circuit judge has seen and heard the witnesses and observed their
manner of testifying and that this court has not had those
advantages in the weighing of the conflicting testimony, the case
is clearly one that falls within the rule often stated by this
court that

in equity cases great weight will be accorded to the findings of
fact made by the trial judge upon conflicting testimony and that
ordinarily his conclusions will not be disturbed."
  The circuit judge in the instant case was confronted with the
task of trying to glean the truth from evidence that was highly
conflicting and he came to the conclusion that the land upon
which the petitioner seeks to engraft a trust was deeded to Mrs.
De Mello by her husband as an absolute gift and in payment of
money obligations to his wife as well as for the future
protection of both of them. In view of the oft-repeated rule that
in order to establish a constructive trust the evidence must be
clear, convincing and satisfactory (Jarrett v. Manini, 2 Haw. 667;
Kuwahara v. Kuwahara, 23 Haw. 273; Hookaia v.
Kealoha, supra; Jones v. Jones, 30 Haw. 565; Wery v.
Pacific Trust Co., 33 Haw. 701), it cannot be said that the
circuit judge was not justified in holding that the conveyance to
Mrs. De Mello was supported by a valuable consideration and that
the petitioner had failed to establish his case.
  For the foregoing reasons the decree dismissing the bill is
affirmed.