OPINION OF THE COURT BY
One Antonio Philip, late of Honolulu, Oahu, died in the year 1859, leaving a will wherein and whereby he bequeathed the whole of his estate to his widow Anna (also known as Ana Momona) for life and provided that at her death it be divided as follows: to George Eriel one fourth, to John Nicholas Ana one fourth, to Antone Nicholas Ana one fourth and to Antone Manuel one fourth. The will was duly admitted to probate on November 30, 1859, and on the 28th of March, 1870, complainant was appointed administrator with the will annexed of the decedent’s estate.
In September, 1886, respondent Oastle, as the attorney for the widow, and taking this action in consequence of financial embarrassment under which Cleghorn was laboring at the time, requested the latter to transfer to him all of the funds and property of the estate to be held by him, Castle, under the same trusts, representing to Cleghorn not only that the widow desired this course to be followed but also that the other devisees joined in the request for the transfer. Oastle further represented to Cleghorn that upon the latter’s so transferring the property, his liability as administrator would terminate.
Cleghorn, believing in the truth of these representations and relying thereupon, paid and delivered over to Castle all of the funds and property of the estate remaining in his possession, that is to say: cash, $1033.48, two promissory notes signed by himself, one for $461.52 and one for $125.69, and, by deed, a lot of
In the negotiations, Castle represented to Cleghorn that all the parties in interest consented that the land be taken as of that value, and Oleghom relied upon this representation also in making the conveyance.
Thereafter, upon the request of the life tenant and some of the other devisees, Castle conveyed to Ana Momona the land at. Waihee, subject to the same trusts expressed in the will and delivered over into1 the care of the late Antone Rosa, who was then the attorney of said Ana Momona, the sum of $1100. and into that of one O. R. Dement the attorney-in-fact for Ana Momona the sum of $400. The land was subsequently conveyed by Ana Momona to Ana Momona, Jr., in whom the title is said to be now vested.
Ana Momona died on January 28, 1897. In June, 1898,, John Nicholas Ana and Antone Nicholas Ana, two of the devisees above referred to and Koleka, widow of Antone Manuel,, a third devisee, instituted certain proceedings before a Circuit Judge of the First Circuit in the matter of the estate of said decedent, which proceedings resulted in the finding by the court that the transfer in 1886 had been made without the consent of or subsequent ratification by the said movants and in a decree holding Cleghorn liable as Administrator for all of the property of the estate and ordering him to pay into court for the benefit
Castle in making the statements which he did in 1886 to Oleghom concerning the consent of the devisees to the transfer, acted in good faith, believing that the transfer did meet with their approval and consent. Nevertheless the statement was incorrect and in that sense a misrepresentation of a fact upon which Castle could and should have fully informed himself. Cleghom believed and relied upon the representations, and continued in ignorance of the truth of the matter until the termination of the former proceedings last mentioned. Yery soon after the rendering of the decision of this court on that matter, he filed the bill of complaint in this case, averring in substance most of the facts above set forth and praying that Castle be ordered to reconvey to him the land at Yraihee or to pay the sum of $1900. in lieu thereof and to account for and pay all of the funds transferred to him by complainant amounting in all to the sum or value of $3420. with interest thereon from January 28, 1897. A general prayer for relief is added. John and Antone Nicholas Ana, IColeka and Mary Brown, widow of George Eriel, another of the devisees, were also made parties defendant. Mary Brown demurred on the ground of misjoinder of parties defendant and the court below held that she had been improperly joined. None of the other respondents except Castle filed any answer or other pleading or made any appearance.
The court below decreed that the respondent Castle pay to the complainant the sum of $3420. with interest thereon from Jan-
The defense mainly relied upon is that this was a voluntary payment by the administrator to the agent of the life-tenant, for his principal, made under a mistake of law, and that the agent cannot now be held liable because long prior to the receipt by him of any notice to the contrary he paid and delivered over the property to his principal; and that the administrator’s remedy is by seeking the trust property wherever it may now be.
We are of the opinion that the case at bar is not within the principle of the cases cited by the respondent in support of that contention. In making the suggestion or request to complainant that all of the property of the estate be transferred to respondent, the latter acted, no doubt, as the agent of the life-tenant, but in receiving and holding the property he acted, not as such agent, but as a trustee for the benefit of all the beneficiaries named in the will; he held the property, not only in order to pay the income thereof to the life-tenant, but also to preserve the principal for the remaindermen and to distribute it among the latter at. the time and in the proportions provided for by the will. The deed of August, 1886, from Oleghorn to Castle (referring to the administration of the estate of the decedent) recites that the grantor “is now desirous of surrendering the said trust, and said grantee has now consented to assume the same,” and in its habendum declares the property to be conveyed “in trust nevertheless to the following uses and purposes, that is to say, during the lifetime of Ana Momona widow of said Antonio Philip to-pay over to her all the net rents issues and profits thereof and at her death to convey the same to the heirs and persons who. may be so declared by the court to be entitled thereto.”
The grantee assumed all of the duties and responsibilities of a trustee under the will. Castle himself recognized this, for he declined, as was his duty to do-, either to allow Ana Momona to-encroach on the principal or to divide the property at the request of the remaindermen and Ana Momona, his alleged principal (see paragraph 8 of answer, and page 5 of Castle’s evidence of'
The deed of the land and the transfer of the funds was made, not solely through a mistake of law but through a mistake of fact caused by the misrepresentation, though innocent, of the respondent of matters upon which he could easily have informed himself. The complainant might, it is true, have pursued the trust property wherever the same was to be found, but, on the other hand, he may elect to look solely to the person with whom he dealt, and in consequence of whose representations he parted with the trust estate.
No laches can be imputed to the complainant, for he instituted proceedings promptly upon first ascertaining, by the decree of the court, that the facts as to the consent of . the remaindermen were otherwise that he had been led by the respondent to believe that they were.
The fact that the title to the land is not now in the respondent, is urged by the complainant as a reason why he should be decreed to pay the whole principal of the estate in cash and not to re-convey the land, since it would not be in his power to make such a reconveyance, or in that of the court to compel performance of its decree. The prayer of the bill is for a reconveyance, or, in the alternative, payment of the sum of $1900. In view of the circumstances above stated which surrounded and led up to the conveyance by Clegkom and its acceptance by Oastle at the valuation of $1900., we are of the opinion that justice requires that respondent be given an opportunity to reconvey the land or cause its reconveyance as representing the sum of $1900. If, however, he is unable to do so>, he should be decreed to pay the $1900. as well as the balance of $1520. in cash; and, in any event, complainant is entitled to interest on the whole sum of $3420. from the 28th day of January, 1891.
The case is remanded to the Circuit Judge of the Eirst Circuit with instructions to enter a decree and to take such further proceedings as may be necessary in accordance with the foregoing views.