CONCURRING OPINION OF
QUARLES, J.I concur in the conclusion reached that the evidence in this case is too uncertain and doubtful to authorize the court to declare a trust in favor of the plaintiff (Jarrett v. Manini, 2 Haw. 667, 673; Kamihana v. Glade, 5 Haw. 497; 1 Perry on Trusts, 6th ed., Secs. 137, 139, 141; 39 Cyc. 166, *280167). I am of the opinion that under the allegations of the bill and of the answer of respondent and the evidence the plaintiff, by killing his brother, his opponent in the matter of the controversy before the court, is in the position of one who destroys evidence, and that his evidence should be considered as opposed or rebutted by that of his brother whom he killed. “Concealing or destroying evidential material is admissible; in particular, the destruction (spoliation) of documents as evidence of an admission that their contents are as alleged by the opponent. That the fraudulent conduct was in connection with other litigation does not necessarily exclude it” (1 Gr. Ev., 16th ed., Sec. 195a, citing Georgia R. & B. Co. v. Lybrend, 99 Ga. 421; Com. v. Sacket, 22 Pick. 394; State v. Staples, 47 N. H. 113).
The more plausible theory from the evidence in the record before us is that the two Kuwaharas started in to put up the building in joint ownership; that before the building was completed the plaintiff sold his interest therein to his brother, now dead, this transaction occurring in June, 1906, after which time the plaintiff had no interest whatsoever in the property out of which the present controversy grew. Under the evidence, as well as the allegations of plaintiff's bill of complaint, his brother refused to pay him anything whatever on account of this property after March, 1909, and as this suit was commenced October 14, 1915, his claim to have a trust declared is stale. The respondent demurred to the bill of complaint on the ground that it was stale, and in my opinion the demurrer should have been sustained. “Courts will not enforce a resulting trust after a great lapse of time, or laches on the part of the supposed cestui que trust, especially when it appears that the supposed nominal purchaser has occupied and enjoyed the estate” (1 Perry on Trusts, 6th ed., Sec. 141).