Robin’s Research
The examples, which appear extensively throughout this website are reduced here to give light to the research section on “Definitions”, all of which a few are taken from and compiled for this website from Black’s Law Dictionary, 6th Ed., West Publishers, 1990. Other sources are cited after the definition. Where an example term appears without a definition, it is either very, very broad (such as “notice”) or too rare or ephemeral (such as “collateral attack”).

Conduct recognizing the existence of a transaction, and intended, in some extent at least to carry the transaction, or permit it to be carried, into effect. It is some act, not deliberately intended to ratify a former transaction known to be voidable, but recognizing the transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it and thus differs from “confirmation”, which implies a deliberate act, intended to renew and ratify a transaction known to be voidable. De Boe v. Prentice Packing & Storage Co., 172 Wash. 514, 20 P.2d 1107, 1110. Passive compliance or satisfaction; distinguished from avowed consent on the one hand, and, on the other, from opposition or open discontent. Paul v. Western Distributing Co., 142 Kan. 816, 52 P.2d 379, 387. Conduct from which assent may be reasonably inferred. Frank v. Wilson & Co., 24 Del.Ch. 237, 9 A.2d 82, 86. Equivalent to assent inferred from silence with knowledge or form encouragement and presupposes knowledge and assent. Imports tacit consent, concurrence, acceptance or assent. Natural Soda Products Co. v City of Los Angeles, Cal. App., 132 P.2d 553, 563. A silent appearance of consent. Failure to make any objections. Submission to an act of which one had knowledge. Exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such length of time as would imply that he intended to waive or abandon his right. Yench v Stockmar, C.A. Colo, 483 F.2d 820, 834. It is to be distinguished from avowed consent, on the one hand, and from open discontent or opposition on the other. Acquiescence and laches are cognate but not equivalent terms. The former is a submission to, or resting satisfied with an existing state of things, while laches implies a neglect to do that which the party ought to do for his own benefit or protection. Hence laches may be evidence of acquiescence. Laches imports a merely passive assent, while acquiescence implies active assent. In re Wilbur’s Estate, 334 Pa. 45, 5 A.2d 325, 331. “Acquiescence” relates to inaction during performance of an act while “laches” relates to delay after act is done.

Legal Application of Acquiescence
Acquiescence is the gravamen of most Kneubuhl cases, but was rarely pled, since rarely understood by anyone except Judge Richmond, and certainly not understood by the beneficiaries. Ironically, it is the one defense that ought to have been pled and answered, but was really not pled at all.
Imagine that your neighbor’s in-laws come for a visit, and, being short on hostel space, the neighbor asks if they might park their RV in your tiny, unused side yard for a “brief spell.” Turns out you have a common ancestor who died without a will, so memories are foggy and not written down. You don’t really say yes or no to your neighbor, nor anything much at all to the in-laws except polite, cursory greetings, watching over time without comment, as they make it all seem permanent. They erect a clothesline, invite you to use it, install a barbeque, same offer, hook up to your electricity without asking (although they send you a check with a 5% gratuity), ward off trespassers, “guarding the property from their porch,” measure off a walkway, well lit, so you don’t trip, and install a lovely border garden, and an address sign saying “Unit #2”, all of which enhance the value of your property, according to the realtors. You finally mention to your neighbor that you are concerned about the duration of their stay, but say nothing directly to the in-laws. Shortly, they announce through a lawyer that they own the place because of your acquiescence and their inheritance rights. You then complain to your neighbor, who throws up his exasperated hands, and helplessly exclaims, “They were always like that!” You exclaim in return, “Why didn’t you say so?” He retorts, “You never asked! And it is not my problem, anyway!” Acquiescence is assent by passive silence. Everything is entirely visible for the whole world to see, but your silence is taken as assent. Whether or not you were tricked is beside the point. (See also estoppel, especially important in the Latham Watkins Memos in the 1980 litigation.
At Olo, acquiescence was never a defense because it never occurred; it was never claimed in the courtroom, and glaringly not even in the unsolicited memo by Hall (see laches) The objections began immediately after 2006 and continued non-stop over the next decade. But since no indicia of ownership were claimed, the defense could never prevail. It could have been claimed by Mark, but he chose not to assert it. Hall made it clear he did not represent Mark, although he could have ridden the coattails of this highly persuasive defense.
We will probably never know why he didn’t.

Such as is equal, or reasonably proportioned, to the value of that for which it is given. That which is not so disproportionate as to shock our sense of that morality and fair dealing which should always characterize transactions between man and man. Fair and reasonable under circumstances. Reasonably just and equitable.

Legal Application of Adequate Consideration
Obviously, the prices paid for the Olo interests in the first place were unfair, but who is to say what is fair? Especially in a confidential relationship? Attorney Sunia called the Territorial Registrar to establish what was a fair price for an acre of land at Olo in 2000. Sure enough: $100,000. Ball park. Furthermore, around that time, Mike marketed similar acreage at Fuamete for a similar price, giving credence to the notion the consideration was inadequate.

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. State v. Knight, 219 Kan. 863, 549 P.2d 1397, 1401.

Legal Application of Affidavit
Affidavits are legally enjoyable for the lawyers, since always arguable, and since it is fundamental that they are written up by lawyers, sworn under oath and signed “per knowledge and belief” at the time of signing. For this reason alone, they are disfavored by judges and courts. Courts want to avoid the battle of the affidavits, so they are, more often than not useless, and arguably inadmissible as evidence. Once written, though, they may be used for impeachment purposes. Lawyers for the Kneubuhls, and Kneubuhls themselves, loved affidavits. Examples are here. The Minutes of the Board of Directors of BFK might have been introduced as evidence, for example, if the custodian (Ben) had been “available” for trial; since he was not, Ben’s affidavit of chain of custody that he was custodian should have sufficed (see also Porter deVries’ work here), but the lawyers kept these out. Margaret’s affidavit in the 2006 trial was never seen by her two daughters, until long after, to their mutual and contradictory dismay. Mike’s affidavit about his Olo quitclaim in the Alai case is contradicted by his testimony at deposition.

A circumstance or other fact accompanying a transfer of property that the courts recognize as an especially reliable indicator of the transferor’s actual intention to hinder, delay, or defraud creditors in making the transfer. It is defined as a fact tending to throw suspicion upon a transaction, and calling for an explanation. It is a suspicious circumstance that overhangs a transaction, or appears on the face of the papers. A circumstance which does not alone prove fraud, but which warrants inference of fraud , especially where there is a concurrence of many such badges. Brennecke v. Riemann, Mo., 102 S.W.2d 874, 877. Recognized “badges of fraud” include fictitious consideration, false statements as to consideration, transactions different from usual course of doing business, transfer of all of a debtor’s property, insolvency, confidential relationship of parties, and transfers in anticipation of suit or execution. Hendrix v. Goldman, Mo., 92 S.W.2d 733, 736.

Legal Application of Badges of Fraud
The “badges of fraud” are indicia or elements of circumstance a judge must look at, and a plaintiff must prove, depending on the jurisdiction, to show one person defrauded another. When two different typewriters are used to type out a document for signing, or when two purportedly produced by the same person contradict one another, while not proof of fraud, a “badge of fraud” appears. Another is a ridiculously low price, or the absence of an attorney, or a magnificent gift one would not normally make. (See Love deeds; see also fraud).

One who benefits from act of another. A party who will benefit from a transfer of property or other arrangement. Examples include the beneficiary of a trust, the beneficiary of a life insurance policy, and the beneficiary of an estate.

Legal Application of Beneficiary
Who is a beneficiary? That was the gravamen of all of our cases. It all boiled down to what the statute enabling trusts permitted. Some are named, grandchildren are in a class subject to open. Grandchildren receive their shares upon the death of their parent. But what if there parent has no more shares? Do they take share from decedent cousins? Probably not. The trust and estate expert (see David Ringold’s work) concluded that the statute permitted beneficial status only for children and grandchildren of the grantor, so any conveyance to one not so related, was actually a conveyance out of trust and therefore illegal. Or just rank trust busting. Judge Richmond’s 2006 ruling that one could sell their interests outside of the family opened the door to this problem, since the interests were not defined. Mike’s insistence that he remained a beneficiary after 1982 was finally made indefensible, and he finally admitted otherwise, but not until deposition in 2015. See Hall Lena Probate letter.

One who, without notice of another’s claim if right to, or equity in, property prior to his acquisition of title, has paid vendor a valuable consideration. Snuffin v. Mayo, 6 Wash.App. 525, 494 P.2d 497.

Legal Application of Bona Fide Purchaser for Value
We learn in law school, these are persons who purchase land or other property without actual knowledge of defects in title, so, since they are innocent of any wrongdoing, they may not be deprived of what they purchased. They are known as “BFPs” or “BFPVWNs.” (bona fide purchasers for value without notice. . . of the defect in title) They get to keep what they bought if they can show that their diligent search disclosed no defect in title (usually because seller with knowledge concealed it or did not disclose it). All of the Olo buyers, from the Jennings family, the Perelini family up to the Lutus and the Inos, figured out what was going on, and all the proposed deals failed. One cannot buy beneficial status under the statute and the trust, so why would one want to buy trust interests? Especially when the beneficiaries do not agree to sale? Or contest the title? (See sales attempts)

A fiduciary duty is an obligation to act in the best interest of another party. For instance, a corporation’s board member has a fiduciary duty to the shareholders, a trustee has a fiduciary duty to the trust’s beneficiaries, and an attorney has a fiduciary duty to a client.
A fiduciary obligation exists whenever the relationship with the client involves a special trust, confidence, and reliance on the fiduciary to exercise his discretion or expertise in acting for the client. The fiduciary must knowingly accept that trust and confidence to exercise his expertise and discretion to act on the client’s behalf.
When one person does agree to act for another in a fiduciary relationship, the law forbids the fiduciary from acting in any manner adverse or contrary to the interests of the client, or from acting for his own benefit in relation to the subject matter. The client is entitled to the best efforts of the fiduciary on his behalf and the fiduciary must exercise all of the skill, care and diligence at his disposal when acting on behalf of the client. A person acting in a fiduciary capacity is held to a high standard of honesty and full disclosure in regard to the client and must not obtain a personal benefit at the expense of the client. (src: US Legal Definitions)

Legal Application of Breach of Fiduciary Duty
Any beneficiary may bring a lawsuit against the trustee for breach of fiduciary duty. (see above)

In the law of evidence the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause. The obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. Burden of proof is a term which describes two different concepts; first, the “burden of persuasion”, which may shift back and forth between the parties as the trial progress. Ambrose v. Wheatley, D.C.Del., 321 F.Supp. 1220, 1222. The Burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence. Calif.Evid.Code, 115. Term has been used to mean either the necessity of establishing a fact, that is, the burden of persuasion, or the necessity of making a prima facie showing, that is, the burden of going forward. State Farm Life Ins. Co. v. Smith 29 Ill.App.3d 942, 331 N.E.2d 275, 278. “burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence. U.C.C. 1-201(8).

Legal Application of Burden of Proof
The rules of burden of proof are complex and esoteric, but basically, learned in the sandbox at grammar school: “I’m rubber and you’re glue and everything you say bounces off me and sticks to you.” It establishes what level of proof one needs. It puts the responsibility to prove a claim squarely on the claimant, and relieves the respondent of the need to defend him or herself until the claim is adequately proved or alleged. How, for example, did Mark become a party, after all? Roy Hall demanded that the plaintiffs add him as a defendant since he was, he claimed, a “necessary party.” Since plaintiffs always get to chose whom to sue, the burden was Hall’s to prove why Mark was necessary in the first place, and why his clients would not get justice without Mark’s presence, all alleged in a motion to dismiss the plaintiffs’ entire case, and, made within a specific time limit. This was all ignored. It was never plaintiffs’ burden to prove why he was not necessary, and therefore not served in the beginning. Burden of proof is a harsh but necessary requirement which serves to stop the conversation, limit the pleadings, and get on with the argument in a reasonable time frame. Not really fa’a Samoa…

The system of fundamental rules and maxims which are recognized as governing the construction or interpretation of written instruments.

Legal Application of Canons of Construction
When interpreting the intent or meaning of a statute or a document, courts and judges have rules to follow which are very strict and often fun for grammarians, always with the intent to discern what signers meant when they signed, based on what was happening when they signed, and always to avoid an unfair or absurd result. The location of an apostrophe in the 2006 decision would determine who (“beneficiary’s” v. “beneficiaries’ “ retained “substantial control” over a planned sale. These are called Canons of Construction and are entirely helpful in reading through the 1982 Agreement, especially the forfeiture clause, and the intent of the Agreement to separate permanently. This intent was so obvious to our parents after four long years of litigation and trouble, they forgot to write it down. The interpretation rules are fixed and fairly inflexible, and must be followed. Four corners, parol evidence, plain meaning are the minimum requirements, discussed elsewhere and on the internet. A judge may look at surrounding circumstances only when there is an “ambiguity,” and the judge gets to decide if there is one in the first place.

With respect to a judicial proceeding, an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it. May v. Casker 188 Okl. 448, 110 P.2d 287 289. An attack on a judgment in any manner other than by action or proceeding, whose very purpose is to impeach or overturn the judgement; or, stated affirmatively, a collateral attack on a judgement is an attack made by or in an action or proceeding that has an independent purpose other than impeaching or overturning the judgment. Travis v Travis’ Estate, 79 Wyo. 329, 334 P.2d 508, 510.

Legal Application of Collateral Attack
The law wants judgments to be final and enforceable. As the definition shows, if one seeks to reopen and reargue a final judgment, one must do precisely that, and do it promptly, and may not relitigate a settled issue in a new lawsuit brought for another reason. Questioning Mike’s beneficial status is a good test of whether the claim that he was no longer a beneficiary after 1982 is not such an attack. But, conspicuously, Hall never claimed it. Since he failed to argue this defense, is it likely he knew this claim was not an impermissible collateral attack? After all, the judge found in the Alai case Mike had standing since he was named a beneficiary. The judge may rightly ask later on, “Did I not already rule on that?” Indeed he had, but the parties had been without their evidence in the earlier Alai proceedings. Mike had sued only Frances, and no other family members. Mike eventually admitted in 2015 he was not a beneficiary after 1982; (see deposition) Does a prior judgement based on legal fiction stand when the truth has been concealed from a court? Or when a plaintiff proceeds with a false caption? In the Alai case Mike sought to have the 1974 Land Planning Agreement made valid and enforceable. This would be a collateral attack against the 1982 judgment, since the terms are entirely contrary. A good defense against collateral attack is collateral estoppel (see next), and a good judge understandably would be very annoyed when presented with it (see fraud). No one has ever mentioned it in court.

Prior judgment between same parties on different cause of action is an estoppel as to those matters an issue or points controverted, on determination of which finding or verdict was rendered. E. I. DuPont de Nemours & Co. v Union Carbide Corp., D.C.III., 250 F.Supp. 816, 819. When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation. City of St. Joseph v. Johnson Mo.App., 539 S.W.2d 784, 785. As a bar to re litigating an issue which has already been tried between the same parties or their privies, it must be pleaded affirmatively. Fed.R. Civil P. 8(c). It is applicable to criminal cases. Ashe v. Swenson, 397 U.S. 436, 443-444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469. Offensive and defensive collateral estoppel. “Offensive collateral estoppel” is used by plaintiff to prevent re litigation of issues previously lose against another plaintiff by a defendant, in contrast to “defensive collateral estoppel” which prevent re litigation by plaintiff of issues.

Legal Application of Collateral Estoppel
Collateral estoppel is a doctrine which simply states you cannot relitigate a final judgment between parties. It is also used to prevent a new plaintiff or defendant from asserting a claim already litigated previously. See examples discussed here in 1982 and in Alai.

A fiduciary relation. It is a peculiar relation which exists between client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife, trustee and cestui que trust, executors or administrators and creditors, legatees, or distributees, appointor and appointee under powers, and partners and part owners. In these and like cases, the law, in order to prevent undue advantage from the unlimited confidence or sense of duty which the relation naturally creates, requires the utmost degree of good faith in all transactions between the parties. It is not confined to any specific association of parties. It appears when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence, or trust, justifiably reposed. The mere existence of kinship does not, of itself, give rise to such relation. It covers every form of relation between parties wherein confidence is reposed by one in another, and former relies and acts upon representations of the other and is guilty of no derelictions on his own part. Peckham v. Johnson, Tex.Civ.App., 98 S.W.2d 408, 416.
Confidential relations are deemed to arise whenever two persons have come into such a relation that confidence is necessarily reposed by one and the influence which naturally grows of the confidence is possessed by the other, and this confidence is abused or the influence is exerted to obtain an advantage at expense of confiding party. Ruebsamen v. Maddocks, Me., 340 A.2d 31, 34.

Legal Application of Confidential Relation
A confidential relationship operates like a trust without a writing. It occurs when one person (the trusted trustee) assumes management of another’s assets, and the other person (victim beneficiary) is so completely trusting that, to him or her, a writing seems unnecessary, even insulting, especially if the trustee created thereby is so loved, or respected and trusted or both. Inquiry is always necessary when one receives a magnificent gift or real estate or art is represented as a gift offered by the victim. The most common examples are real estate and art. Frances alleged she was in a confidential relationship, and that Mike was her fiduciary. She beFlieved he was trustee, and never inquired about his management. But, under the law, when one profits unduly from the relationship, that is called “unjust enrichment” in a confidential relationship (see here). Mike first claimed that that Frances gave him Fagaiofu out of “love” alone. Next he claimed she gave it in payment of a debt she supposedly owed to his unnamed attorney because Bob Opelle allegedly failed to make promised mortgage payments for Mike’s house; finally, he claimed it was given over to Attorney Dick Higbie in exchange for about $10,000 in legal fees; Frances trusted Mike when he “bought” acreage at Olo for about $3,000 or $5,000 per acre. See depositions. Unjust enrichment in a confidential relationship is a form of fraud well recognized in Samoa.

The doctrine of “curative admissibility” allows evidence which is otherwise inadmissible to be presented because similar evidence has been introduced by the adverse party. People v. Wilbert, 15 I11.App.3d 974, 305 N.E.2d 173, 179. In some jurisdictions, an opponent may counter or answer evidence which has been admitted without objection though otherwise inadmissible to cure the effect of such evidence. This rules is not of universal application or acceptance.

Legal Application of Curative Admissibility of Evidence
Not all evidence is admissible. For example, when admission is “against public policy” evidence stays out. Abuse victims’ names, evidence of repair, attorney client conversations, settlement negotiations all have compelling reasons to prevent their disclosure into the record. That said, if and when an attorney ignores fully admissible and dispositive evidence, and does not use it in the record, that would be malpractice. So it was with the BFK Board Meeting Minutes notes, which were going to be admitted. Porter de Vries prepared a Motion on their admissibility. To no avail, Sunia would not admit them, claiming, “there was no custodian,” when he had prepared Ben’s affidavit as custodian, also not admitted. Not a peep was uttered about why Mike left BFK, Inc. and the estate. And yes, our settlement discussions consumed most of a decade, but not a word of this was introduced. This absence of evidence opened the door to the surmise that it was the plaintiffs who had refused to settle or even discuss settlement. Everyone knows this is not the case, and they ought be estopped from so claiming (for forfeiture).

Statutory remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to his legal rights. A binding adjudication of the rights and statutes of litigants even though no consequential relief is awarded. Brimmer v. Thomson, Wyo., 521 P.2d 574, 579. Such judgement is conclusive in a subsequent action between the parties as to the matters declared and, in accordance with the usual rules of issue preclusion, as to any issues actually litigated and determined. Seaboard Coast Line R. Co. v. Gulf Oil Corp., C.A.Fla., 409 F.2d 879.

Legal Application of Declaratory Judgement
A declaratory judgment is just that. A judge declares what the law is or the what the terms of an agreement or contract are. It offers no further relief than that. If one wants damages or enforcement, such further relief must be separately requested at the end of the complaint is the “prayer for relief.” For example, in the Alai case, Mike asked for a judgment that the 1974 Land Planning Agreement was valid and enforceable, and, therefore Frances’ lease with the Alais at Olo was “void.” The judge declined to agree, since the 1974 Agreement basically busts the trust by making each beneficiary their own trustee (which they could not do and may not be not be), but we are not sure he noticed that. Later on, in 2006, Alailima asked that Frances appoint her own Trustee; the judge might have wondered if anyone had ever read any of his prior decisions, or the statute, or Judge Miyamoto’s first decision he so carefully quoted from the 1982 Opinion and Order on the Motion for Summary Judgment declaring the judgment that the trust was one valid unitary trust.

To divest or deprive of qualifications; to incapacitate; to render ineligible or unfit, as, in speaking of the “disqualification” of a judge by reason his interest in the case, of a juror by reason of his holding a fixed preconceived opinion, or of a candidate for public office by reason of non-residence, lack of statutory age, previous commission of crime, etc.

Legal Application of Disqulify
One who benefits from act of another. A party who will benefit from a transfer of property or other arrangement. Examples include the beneficiary of a trust, the beneficiary of a life insurance policy, and the beneficiary of an estate.

In anti-trust law, the order of court to a defendant (e.g. corporation) to divest itself of property, securities or other assets. U.S. v. E. I. duPont de nemours and Co., 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318. A firm’s act of selling off one or more of its parts, such as a subsidiary, a plant, or certain assets that create productive capacity. Divestiture is sometimes mandated by the courts in merger and monopolization cases.

Legal Application of Divestiture
In the 1982 Settlement Agreement the siblings divested, some from Mike, and Mike from all but Frances, and entirely from the estates, marital, residual and commercial in the will contest.

Any unlawful threat or coercion used by a person to induce another to act (or to refrain from acting) in a manner he or she otherwise would not (or would). Subjecting person to improper pressure which overcomes his will and coerces him to comply with demand to which he would not yield if acting as free agent. Head v. Gadsden Civil Service Bd., Ala.Civ.App., 389 So.2d 516, 519. Application of such pressure or constraint as compels man to go against his will, and takes away his free agency, destroying power of refusing to comply with unjust demands of another. Haumont v. Security State Bank, 220 Neb. 809, 374 N.W.2d 2, 6.
A condition where one is induced by wrongful act or threat of another to make a contact or perform a tortious act under circumstances which deprive him of exercise of his free will. Hyde v. Lewis, 25 I11.App.3d 495, 323 N.E.2d 533, 537. Includes any conduct which overpowers will and coerces or constrains performance of an act which otherwise would not have been performed. WIlliams v. Rentz Banking Co., 112 Ga.App. 384, 145 S.E.2d 256, 258.
Duress may be a defense to a criminal act, breach of contract, or tort because an act to be criminal or one which constitutes a breach of contract or a tort must be voluntary to create liability or responsibility.
A contract entered into under duress by physical compulsion is void. Also, if a party’s manifestation of assent to a contract is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the contract is voidable by the victim. Restatement, Second, Contracts §§ 174, 175.
As a defense to a civil action, it must be pleaded affirmatively. Fed.R.Civil P. 8(c).
As an affirmative defense in criminal law, one who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime in question.

Legal Application of Duress
Duress, in its ordinary meaning, is simple enough, but there is good law why duress is included as one of the “badges of fraud.” A person about to lose a home in foreclosure is always considered under duress in a court of law, but if another takes advantage of that circumstance to wield an unfair advantage, they are imposing further duress. Intentionally.

Equitable tolling is a legal principle evolved from the common law of equity. Equitable tolling states that the statute of limitations will not bar a claim if the plaintiff, despite reasonable care and diligent efforts, did not discover the injury until after the limitations period had expired.
The doctrine of equitable tolling means only that the running of the statute is suspended, not that the limitations period begins over again. Thus, even if the limitations period was suspended during the pendency of the initial suit, it would have resumed after the first suit was dismissed. Equitable tolling also means that a person is not required to sue within the statutory period if he cannot in the circumstances reasonably be expected to do so. (Dixon v. United States, 1999 U.S. App. LEXIS 13215 (10th Cir. Okla. 1999)). (src: US Legal Definitions)

Legal Application of Equitable Tolling
All causes of action have a “statute of limitations” which indicates how long one has to file an action after the event occurred. That said, the statute of limitations cannot begin unless one has notice, real knowledge, that the offending event has occurred. Thus Fagaiofu was “transferred” in 1984, but Frances did not know this for more than 30 years. Her tolling period begins when she reasonably learns of the alleged transfer.

The remaining interest belonging to one who has pledged or mortgaged his property, or the surplus of value which may remain after the property has been disposed of for the satisfaction of liens. The amount or value of a property above the total liens or charges. The difference between the fair market value and debt in property; thus, an equity of $5,000 may come about by having fair market value property of $20,000 with debt of $15,000. The term came from the development in English courts of equity of the right of an owner of property to redeem his property even after a foreclosure, which right came to be known as the equity of redemption. The existence of the right predicated on the property being of far greater value than the debt owed to the party that foreclosed.

Legal Application of Equity in Real Estate
Equity is an ancient word in English legal history, but has come to mean the law of “fairness” that is not covered by statutes or common law, when shares are rights of less than full ownership (think of the equity in house as a limited ownership share). When the judge refers to an “equitable interest” he or she is potentially, but not necessarily, referring to everything in the pertinent universe of ownership which is not established by the statute or other law. Hence, what is the nature of the “equitable interest” held by Lena’s beneficiaries, when it can’t be legal title to land? It is an estate of some sort or other. Our task was read the statute and the trust and figure this out. We may not expect the court to do this work for us.

Estates may be either absolute or conditional. An absolute estate is a full and complete estate, or an estate in lands not subject to be defeated upon any condition. In this phrase the world “absolute” is not used legally to distinguish a fee from a a fee simple. A conditional estate is one, the existence of which depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. Estates are also classed as executed or executory. The former is an estate whereby a present interest passes to and resides in the tenant, not dependent upon any subsequent circumstances or contingency. They are more commonly called “estates in possession” 2Bl.Comm. 162. An estate where there is vested in the grantee a present and immediate right of present or future enjoyment. An executory estate is an estate or interest in lands, the vesting or enjoyment of which depends upon some future contingency. Such estate may be an executory devise, or and executory remainder, which is the same as a contingent remainder, because no present interest passes. A contingent estate is limited to a person not yet born. Conventional estates are those freeholds not of inheritance or estates for life, which are created by the express acts of the parties, in contradistinction to those which are legal and arise from the operation of law. A dominant estate, in law of easements, is the estate for the benefit of which the easement exists, or the tenement whose owner, as such, enjoys an easement over an adjoining estate. An expectant estate is one which is not yet in possession, but the enjoyment of which is to begin at a future time; a present or vested contingent right of future enjoyment. Examples are remainders and reversions. A future estate is an estate which is not now vested in the grantee, but is to commence in possession at some future time. It includes remainders, reversions, and estates limited to commence in futuro without a particular estate to support them, which last are not good at common law, except in the case of chattel interests. 2 Bl.Comm. 165. An estate limited to a commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time, or otherwise, of a precedent estate created at the same time. A particular estate is a limited estate which is taken out of the fee, and which precedes a remainder; as an estate for years to A., remainder to B. for life; or an estate for life to A., remainder to B. in tail. This precedent estate is called the “particular estate,” and the tenant of such estate is called the “particular tenant.” 2 Bl.Comm. 165. A servient estate, in the law of easements, is the estate upon which the easement is imposed or against which it is enjoyed; an estate subjected to a burden or servitude for the benefit of another estate. A settled estate, in English law, is one created or limited under a settlement; that is, one in which the powers of alienation, devising, and transmission according to the ordinary rules of descent are restrained by the limitations of the settlement. A vested estate is one in which there is an immediate right of present enjoyment or a present fixed right of future enjoyment; an estate as to which there is a person in being who would have an immediate right to the possession upon the ceasing of some intermediate or precedent estate. An original estate is the first of several estate, bearing to each other the relation of a particular estate and a reversion. An original estate is contrasted with a derivative estate; and a derivative estate is a particular interest carved out of another estate of larger extent.

Legal Application of Estate
All “estates” (no matter what the property is) have characteristics by which lawyers and scholars, and most importantly judges, distinguish them one from another. These are enumerated in the common law and the statutes. Experts and scholars in this subject can demand huge expert witness fees to win cases (see David Ringold). Our “beneficial estate” is what Lena gave to us, no more no less, when she could not give us full legal title- but she never named the type of estate she was giving. When the trust is silent, it is assumed to be the largest possible the donor could convey, which is a life estate. Pure, ordinary legal title is called “fee simple.” Roy Hall referred to these as “fee estates” (see his argument) which they cannot be under the blood qualification statute. All estates have a description, a duration and an owner, a value, of course, and limitations on what one may do with the estate, especially concerning the sale of the interests. These limitations, if any, and only in part, direct how and to whom and under what circumstances the property may be alienated, sold or transferred. A life estate is the right to possess the property for a duration measured by the life or lives chosen by the trustor. A life estate is the second largest estate after fee simple. Hence, when Judge Richmond wrote that Lena gave as much as she could, and as close as possible to legal title (the fee simple estate she could not give), he simply reminded everyone of that. As litigants we were obliged to share with the judge how this works, not expect him to go to the library and do the research for us. The lawyers apparently concluded otherwise. Ironically Judge Kruse and Roy Hall agreed the estates in Lena’s trust were life estates in their 1982 Memoranda. And Kruse even noted Lena cut off all “dower rights” in favor of her grandchildren (those are rights of the spouses to inherit or occupy or own or possess or otherwise remove property from the trust for their own use). The Judge was aware of this dower problem, when he thoughtfully gave Dotsy a life estate at Olo after John died (see John Probate). He wanted her to have some rights, and a place to live, after all…. And not be made homeless by other persons in the family who wanted the Tongans removed. Cousins who say “I think things should be as they are,” are remarking on what they think would be fair and equitable.
In contrast, a fee simple interest is an absolute estate without limitation or condition, in its entirety, with unconditional powers of disposition and if one dies intestate (without a will) it passes to his or her heirs. See fee simple below.

Estoppel is or may be based on acceptance of benefits, Harjo v. Johnston, 187 Okl. 561, 104 P.2d 985, 992, 998; actual or constructive fraudulent conduct, Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249, 252; admissions or denials by which another is induced to act to his injury, Wabash Drilling Co. v. Ellis, 230 Ky. 769, 20 S.W.2d 1002, 1004; agreement on and settlement of facts by force of entering into contract, Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, 307; assertion of facts on which another relies; assumption of position which, if not maintained, would result in injustice to another; concealment of facts, Greer v. Franklin Life Ins. Co., Tex.Civ.App., 151 S.W.2d 305, 315; conduct or acts amounting to a representation or a concealment; consent to copyright infringement, whether express or implied from long acquiescence with knowledge of the infringement, Edwin L. Wiegand Co. v. Harold E. Trent Co., C.C.A.Pa., 122 F.2d 920, 925; election between rights or remedies, Mason & Mason v. Brown, Tex.Civ.App., 182 S.W.2d 729, 733; inaction, Hankins v. Waddell, 26 Tenn.App. 71, 167 S.W.2d 694, 696; laches; language or conduct which has induced another to act, Brown v. Federal Land Bank of Houston, Tex.Civ.App., 180 S.W.2d 647, 652.

Legal Application of Estoppel
See the various deeds, and, long ago, the Affidavits of James, Ben and John in the first concealed deed in the 1982 Litigations.

Of or relating to moral action, conduct, motive or character; as, ethical emotion; also, testing of moral feelings, duties or conduct; containing precepts of morality; moral. Professionally right or befitting; conforming to professional standards of conduct. Kraushaar v. La Vin, 181 Misc. 508, 42 N.Y.S.2d 857, 859.

Legal Application of Ethics
Ethics, or professional responsibility, have been the subject of conversation throughout the entire history of litigation, and will, therefore, not be addressed here. Motions to disqualify, for sanctions, and for malpractice are the typical remedies.

Fee simple estate is an estate of absolute ownership. It is not encumbered by any other interest, debt or other liabilities. Restraints on alienation are repugnant to (in opposition to) fee simple estates. But it may be subject to eminent domain, escheat, police power, and taxation. (src: US Legal Definitions)

Legal Application of Fee Simple Estate
A “fee simple,” or “fee” estate, simply states that there are no limits on conveyance or transfer. It means full legal title. While most Kneubuhls understood the interests in land were in a trust, and therefore not legal title, others who ignored the statute and trust, spent endless hours struggling with the challenge of converting trust interests into legal title by selling them out of the trust, which one may not do. Various attempts to represent the land as an “estate” (Sale 1) rather than a trust, or “family land,” (sale 1, sale 2)” or a fee estate (Hall argument), or represent that the property would become owned fully by the buyer after a certain event (e.g. the end of a lease) Douglas to Perelini, and surprisingly, that the trustee would convert it to legal title, but only after the moneys were paid (see Hall sale correspondence), without mentioning majority approval. It is interesting that the Bank of Hawaii and the Veterans’ Affairs office figured this out, and the last attempted sale was off.

A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or estate of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other,m take selfish advantage of his trust, or deal with the subject matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited as between persons standing in such a relation to each other. Examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal, and agent, executor and heir, trustee and cestui que trust, landlord and tenant, etc.

Legal Application of Fiduciary
The duties of a fiduciary, whether a trustee in a confidential relationship or in a trust, are subject to an enormous body of law in the statutes and in the common law. The rules depend on the matter and the jurisdiction. In a trust, they are usually written out, but Lena merely stated her trustee may manage “ . . . in whatever manner he deems best.” (see trust) In other words, with complete discretion. That said, in general, everything must be done in the best interest of the beneficiaries, and no self-dealing (personal profit) is permitted on the part of the trustee or any other fiduciary in any confidential relationship. Lena appointed Opelle as her first trustee, and he also served as the business manager for a time with only one restraint: majority approval and offer right of first refusal to all of the remaining beneficiaries should a sale be planned. Part of the troubles in 1982 arose from a coordinated effort by Mike with Frances to question James’ performance as Trustee of the marital, and residual trusts, since he had in that capacity the power to withhold funds, and he did. (see Board Minutes, Freese correspondence)
In his decision of 2006-2007, Judge Richmond limited the trust terms in restraint of the trustee, but did not discuss the fiduciary duty. He was not asked to. Most buyers promptly balked if and when they learned they were only buying interests. Our trustee promptly and wisely resigned rather than address this fiduciary duty to clarify and thereby protect the trust, which had been placed in jeopardy by sales promises or inducements; his successor wisely conditioned his acceptance of the trustee job role on avoidance of any dispute resolution. The Memorandum of Understanding gave Langkilde a retroactive waiver of liability, but nevertheless, that was an admission that there had always been a trustee to share with Frances, and who had been concealed from her. He participated in the transfer of Malaloa for Mike and Margaret.

A right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. Coastal Bay Golf Club, Inc. v. Holbein, Fla.App., 231 So.2d 854, 857.

Legal Application of First Refusal
First refusal occurs in a vast number of circumstances identified by the parties to its creation, and is imposed when a property planned for sale must be first offered to a group or an individual according to its terms. It is most often confused with right of first offer. There are endless law reviews on the topic, one is offered. In the case of Lena’s trust interests for sale, the sellers offered it to beneficiaries at the fair market value price they wanted. This was in error, likely, since only the price of the agreed-upon-sale would or should have been the “first refusal” price offered to the beneficiaries. Roy Hall offered to the beneficiaries draft sale documents or agreements which he could later modify as if these were binding final agreements/contracts for sale with an agreed upon, confirmed price the beneficiaries must match. So he was not in compliance either. (see sale docs)

A comprehensive term which means a divestiture of specific property without compensation; it imposes a loss by the taking away of some preexisting valid right without compensation. L & K Realty Co. v R.W. Farmer Const. Co., Mo.App., 663 S.W.2d 274, 279. A deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition. Loss of some right or property or money because of breach of a legal obligation (e.g. default in payment).
Forfeiture of property (including money, securities, and real estate) is one of the penalties provided for under certain federal and state criminal statutes (e.g., 18 U.S.C.A. §§ 981, 982 (criminal and civil forfeiture), 21 U.S.C.A. § 853 (forfeiture in drug cases).

Legal Application of Forfeiture
In law, while the primary objective is to seek the resolution of conflict over rights, and settlement is preferred, access to courts is a fundamental right under the United States Constitution. It is a right one cannot give up without careful consideration and a canvass by the court. Basically, if we need a judge to decide, so be it. In many circumstances, parties endeavor to create what are commonly called the “in terrorem” clause which states, if you do this or that, or go to court you will lose the gift, the inheritance, your rights under the contract, the property, whatever is at stake. Good- or at least common- examples include marrying outside the faith, or drinking alcohol, or whatever personal prejudice of the donor is enshrined. This is often misunderstood and rarely upheld. An in terrorem clause appears in the 1982 Agreement under the term “forfeiture” which Hall stated (see his memo and argument) meant if anyone went to court for any reason whatsoever, they would forfeit everything. This is certainly not what the law says, nor it is what the Agreement says. It is important to review the various decisions and the Canons of Construction to see what Judge Richmond said about the rights of the beneficiaries to exercise their constitutional rights to access to courts. Interestingly, the case which guarantees access to courts as a constitutional right is Boddie v. Connecticut, in which the Supreme Court upheld the right to access, even when one could not pay the filing fee. Judge Richmond went to Yale in Connecticut.

An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1251. A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150. “Bath faith” and “fraud” are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, in fairness, etc.
Elements of a cause of action for “fraud” include false representation of a present or past fact made by a defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation. Citizens Standard Life Ins. Co. v. Gilley, Tex.Civ.App., 521 S.W.2d 354, 356.
As distinguished from negligence, it is always positive, intentional. It comprises all acts, omissions, and concealments involving a breach of a legal or equitable duty and resulting in damage to another. And includes anything calculated to deceive, whether it be a single act or combination or circumstances, whether the suppression of trust or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth, or by look or gesture. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other.

Legal Application of Fraud
While getting defrauded is easy to understand, fraud is complicated. No examples of the garden variety are enumerated here. But special attention is called to “constructive fraud,” is which is best grasped by asking, who had an obligation to speak up disclose what, and to whom? Even if one had no “selfish or evil design?” And fraud in the inducement. Was Frances promised any benefit or offered any service to cause her to assent? And fraud on the court: the Malaloa “debt” and the “unpaid debt” referenced in the second deposition and at trial are examples of fraud upon the court, since arguably minimally and at best fabrication of evidence; the attempt to register Fuamete in Mike’s name alone is a fraud upon the court. (transcript pending)

The hiding or suppression of a material fact or circumstance which the party is legally or morally bound disclose. The employment of artifice planned to prevent inquiry or escape investigation and to mislead or hinder the acquisition of information disclosing a right of action; acts relied on must be of an affirmative character and fraudulent. Fundunburks v. Michigan Mut. Liability Co., 63 Mich.App. 405, 234 N.W.2d 545, 547. The test of whether failure to disclose material facts constitutes fraud is the existence of a duty, legal or equitable, arising from the relation of the parties; failure to disclose a material fact with intent to mislead or defraud under such circumstances being equivalent to an actual “fraudulent concealment.” Fraudulent concealment justifying a rescission of a contract is the intentional concealment of some fact known to the party charges, which is material for the party injured to know to prevent being defrauded; the concealment of a fact which one is bound to disclose being the equivalent of an indirect representation that such fact does not exist.

Legal Application of Fraudulent Concealment
Simply stated, if one conceals something with the intent to defraud another, that is fraudulent concealment. If one purports to have an “original deed” and refuses to share it for examination purposes, that might not be fraudulent concealment, just simple concealment, another form of fraud. But if one sells another’s $1 million interest in a property and fails to disclose the entire sale itself, that most likely is. See also fraudulent misrepresentation.

A successful fraudulent inducement claim requires a claimant to establish that it “reasonably relied” upon promises of future conduct made by another party. However, a court may find it unreasonable for a party to rely on statements or promises, for instance, when not contained within a written agreement, when that agreement contains a merger clause. In such cases, reliance on the oral promises may be found to be unreasonable, and it will not be held that there was reasonable reliance on such representations.
Fraud in the factum occurs by deception causes the other party to misunderstand the nature of the transaction in which he or she is engaging, especially with regard to the contents of a legal document, such as a contract or promissory note. It is the type of fraud that obtains a party’s signature to an instrument without knowledge of its true nature or contents. (src: US Legal Definitions)

Legal Application of Fraudulent Inducement
Fraud in the inducement is particularly insidious since it preys on the unsuspecting, or those in confidential relationships, and others with an innocently neglected duty to discover. Promising riches or future profits or benefit is the fundamental element of this particular form of fraud.

Interests in real or personal property, a gift or trust, or other things in which the privilege of possession or enjoyment isa in the future and present. Commissioner of Internal Revenue v. Wells, C.C.A.6, 132 F.2d 405, 407. AN interest that will come into being at some future point in time. It is distinguished from a present interest which is already in existence. Assume, for example, that D transfers securities to a newly created trust. Under the terms of the trust instrument, income from the securities is to be paid each year to W for her life, with the securities passing to S upon W’s death. W has a present interest in the trust since she is currently entitled to receive the income from the securities. S has a future interest since he must wait for W’s death to benefit from the trust.

Legal Application of Future Interests
Future interests are interests one will definitely enjoy at a future time, if they are “vested” under the common law, which is to say, one will have them no matter what. If not vested, then the interests are “contingent.” In 1960, Lena created for her children presently (then) vested interests in present possession, and for her grandchildren, presently (then) vested future interests in possession of the trust interests, possession to occur, once their parents passed. The postponement of enjoyment of a future right does not mean it has not vested. Lena meant her grandchildren had the right of future possession the moment she wrote the trust in 1960. We rely on Professor Simes, the leading scholar and expert on future interests. As a practical matter, beneficiaries cannot sell their interests without consent of the grandchildren whose interests have vested. Every lawyer on the case was sent a copy of Professor Simes’ book of the same title. None has returned it.

A term applied to that species of testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others. A statement, other that one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Hearsay includes any statement made from outside the present proceeding which is offered as evidence of the truth of matter asserted therein. Also included as hearsay is non verbal conduct which is intended to be the equivalent of a spoken assertion. Such conduct is called nonassertive conduct. Fed.R.Evid. Rule 801(a) conduct which was not intended as an assertion at the time it was done is not hearsay. Such conduct is called nonassertive conduct. Fed.R.Evid. Rule 801(c) also provides that assertions which are offered to prove something other than the matter asserted are not hearsay.
Hearsay evidence is testimony in court of a statement made out of the court, the statement being offered as an assertion to show the truth of matter asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter., Mutyambizi v. State, 33 Md.App. 55, 363 A.2d 511, 518. Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness, but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and, as such , hearsay evidence is generally inadmissible unless it falls within one of the many exceptions which provides for admissibility.

Legal Application of Hearsay
Hearsay is an out of court statement offered for the truth of the matter asserted therein. It is generally inadmissible but has so many exceptions, it often gets in. Our case is so replete with hearsay (see depositions), it is entirely astonishing the lawyers never once made objection. It can be admitted to explain one’s state of mind. For example, if I say I was no longer worried because I was told Mike paid off Frances’ entire mortgage on a San Juan Capistrano home, so she had no further worries, it would not reflect any truth at all, but merely why I did not think or act differently. If it is reported that Charles Alailima is selling Olo, again, I have no real knowledge of the truth of the matter, and I know that I don’t, so that would not be hearsay (see the “Kool Aid Correspondence”).

A right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. Coastal Bay Golf Club, Inc. v. Holbein, Fla.App., 231 So.2d 854, 857.

Legal Application of Heir by Devise
Many Kneubuhls believed that the interests in the trust Lena gave them were theirs absolutely, and not necessarily in trust, or just a “trust of convenience.” Charles Alailima argued this in Frances’ 2006-2007 litigation referring to the text of the 1969 Agreement which partitioned interests at Olo. (see Alailima and Vargas reargument ). Alailima was right to assert every argument in view of his duty of zealous advocacy and diligence. Others have concluded they could take the interests out of trust, by giving them to others in a new trust or, perhaps, in a will, for example. Or just by selling them. Mark believes he can leave them to his children. Those favoring sale and transfer to spouses and grandchildren, now take the “looser” position, despite that Mike’s attorney Kruse in 1982 noted Lena cut off all dower rights(see memo); others who adhere to the Restatement of the Law understand that trust interests are in no one’s estate and will revert to Lena’s estate when the trust terminates. So, leaving them to someone in a will is entirely ineffective. If unsold, or un-transferred, they will revert to her estate. If her will says she “wanted all of her children treated equally.” If anyone were to say that because of her will, the distributions made in the 1982 Agreement are invalid, that would be a collateral attack (same actions and transactions). Also, Roy Hall has stated he will probate Margaret’s will in American Samoa. Will he notice all the beneficiaries? Will he accept the interests in Lena’s trust were never in her estate? And that they passed to her children pursuant to the trust, and are no longer hers to convey. All smart lawyers will advise all beneficiaries to add the interests to their wills, in case the law changes. Regretfully, this reinforces the wishful thinking of some. This analysis cannot proceed without distinguishing between “heirs, devisees, and assigns,” and checking these with the Alailima Memorandum.

As used in a statute excluding one found incompetent to execute the duties of an administrator by reason of improvidence, means that want of care and foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe, and liable to be lost or diminished in value, in case the administration should be committed to the improvident person.

Legal Application of Improvidence
This is a common law term used in fraud litigation, and refers to “badges of fraud” in another way, i.e. “improvident.” Is this a really a polite way of referring to reckless or just plain uninformed deals, but the court is always vigilant over whether someone actually cheated.

Generally, a document evidencing title to property, real or personal; e.g. carbon copy of bill of sale to automobile. Edwards v. Central Motor Co., 38 Tenn.App. 577, 277 S.W.2d 413, 416.

Legal Application of Indicia of Title
When courts are asked to define who is an owner, among other measures, they ask whether the claimed owner has exercised the “indicia of ownership.” This is not a duty to perform, (like inspection, maintenance, notice and registration, gates, signs, etc.), but is instead a more ephemeral form of evidence which tends to show one owns something by attending to it and caring for it and protecting it. Mark and Via show all of the indicia of ownership, even when the title problems plague their claim, while Doug, Carrie and Kelley show virtually none of them. No lawyer pled or discovered any of these relevant facts, despite repeated reminders to the lawyers that might be wise. (see acquiescence)

To take or receive by inheritance; to take by descent as a matter of law as heir on death of ancestor; though this item has also come to mean to receive by device (i.e., by will). Acquisition of property by descent and distribution. The word is also used in its popular sense as the equivalent of to take or receive.

Legal Application of Inherit
One does not inherit trust interests, and unless so provided by the donor, they can’t be reconveyed in a will. One acquires them by virtue of trust terms which create them. Lena made no provision for inheritance. The will contest and 1982 Settlement Agreement terms remain, until such time as the interests revert to her estate. Mike was permanently removed from taking twice.

The most general term that can be employed to denote a right, claim, title, legal share in something. In its application to real estate or things real, it is frequently used in connection with the terms “estate,” “right,” and “title.” More particularly it means a right to have the advantage accruing from anything; any right in the nature of property, but less than title.

Legal Application of Interest
The High Court has ordered that the ownership of the Kneubuhl 1960 trust beneficiaries is limited to interests in trust. What then are these? That is the gravamen of the present case. Moreover, if they are interests, there can be no rights to them unless they are vested. If the enjoyment of the rights is postponed to the future, but they are nevertheless vested, the grandchildren may presume they own the interests without a right of present possession; they may probably sell their future interests, and may have to agree with parents about that. Only one family is faced with this issue.
See also “future interests.” (above)

Any of the people or organizations who may be affected by a situation, or who are hoping to make money out of a situation. (src: Cambridge Dictionary)

Legal Application of Interested Party
An interested party may join a litigation but is not necessary in order to conduct it. To be “interested” one must only have a legally cognizable right or interest. Interested parties differ from necessary parties (Hall claimed Mark was “necessary” in a motion to join). A case may not proceed unless all parties necessary “to do justice” and to settle damages are included, lest persons with a legal interest in the outcome are unfairly excluded. This happened more than once in the Pritchard family, and probably the Kneubuhls, too.

The act or fact of becoming involved intentionally in a difficult situation. (src: Cambridge Dictionary)

Legal Application of Intervention
Interested parties may intervene; it depends on what the court decides the legally cognizable interest is. Robin intervened in Alai to protest Mike’s standing; the judge ruled every beneficiary has standing to seek declaratory judgment, especially where there is no trustee, which kind of rains on the forfeiture parade…

Neglect or omission to assert right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to adverse party, People ex rel. Mulvey v. City of Chicago, 292 I11.App. 589, 12 N.E.2d 13, 16; neglect or omission to do what one should do as warrants presumption that one has abandoned right or claim, Eldridge v. Idaho State Penitentiary, 54 Idaho 213, 30 P.2d 781, 784; negligence by which another has been led into changing hi condition with respect to property or right, Heyburn Bldg. Co. v. Highland Motor Transfer Co., 245 Ky. 514, 53 S.W.2d 944, 946; negligence or omission seasonably to assert a right, Davidson v. Grady, C.C.A.Fla., 105 F.2d 405, 408; omission of something which a party might do and might reasonably be expected to do towards vindication or enforcement of his right, McCauley v. Northern Texas Traction Co., Tex.Civ.App., 21 S.W.2d 309, 313; omission to do what law requires to protect one’s rights under circumstances misleading or prejudicing adverse party; unconscionable, undue, unexcused, unexplained or unreasonable delay in assertion of right, Loveland Camp No. 83, W. O. W., v. Woodmen Bldg. & Benev. Ass’n, 108 Colo. 297, 116 P.2d 195, 199; unreasonable or unexplained delay in asserting right which works disadvantage to another, Kennedy v. Denny, 237 Ky. 649, 36 S.W.2d 41, 42.

Legal Application of Laches
Laches merely means the passage of time. It has a unique meaning in the law, is largely discretionary, and was used in the Alai case, because no evidence or little evidence was submitted on which the court might rule. The judge noted this. It must be distinguished from acquiescence where evidence of conduct upon which the observer relies must be introduced.

Term “law of the case,” as generally used, designates the principle that if an appellate court has passed a legal question and remanded the cause to the court blow for further proceedings, the legal question thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same. Allen v. Michigan Bell Tel. Co., 61 Mich.App. 62, 232 N.W.2d 302, 303. Doctrine which provides that an appellate court’s determination on a legal issue is binding on both the trial court on remand and an appellate court on a subsequent appeal given the same case and substantially the same facts. Hinds v. McNair, Ind.App., 413 N.E.2d 586, 607. Doctrine is that principle under which determination of questions of law will generally be held to govern case through all it subsequent stages where such determination has already been made on a prior appeal to a court of last resort. Transport Ins. Co. v. Employers Cas. Co., Tex.Civ.App., 470 S.W.2d 757, 762. The doctrine expressed practice of courts generally to refuse to reopen what has been decided. White v. Higgins, C.C.A. Mass., 116 F.2d 312, 317, 318; Fleming v. Campbell, 148 Kan. 516, 83 P.2d 708, 709. It expresses the rule that final judgement of highest court is final determination of parties’ rights.
Doctrine of “law of the case” is one of policy only and will be disregarded when compelling circumstances call for a redetermination of the determination of point of law on prior appeal, and this is particularly true where intervening or contemporaneous change in law has occurred by overruling former decisions or establishment of new precedent by controlling authority. Ryan v. Mike-Ron Corp., Cal.App., 63 Cal.Rptr. 601, 605. Doctrine is merely a rule of procedure and does not go to the power of the court, and will not be adhered to where its application will result in an unjust decision. People v. Medina, Cal., 99 Cal.Rptr. 630, 635, 492 P.2d 686.

Legal Application of Law of the Case
The Law of any Case consists of the decisions rendered in the various litigations, plus the statutes, and the constitution. It refers to what legal conclusions everyone agrees are settled, and expects will endure as precedent, especially where, argument has occurred, a judge has ruled, and no one reargues or appeals. To reargue the judgments which make up the law of the case (without good reason) is often a collateral attack. These are always impermissible. That said, if the law of the case is based on flawed facts or misrepresentation, it may be readdressed to prevent an “injustice.”

An estate whose duration is limited to the life of the party holding it, or some other person.
A legal arrangement whereby the beneficiary (i.e., the life tenant) is entitled to the income from the property for his or her life. Upon the death of the life tenant, the property will go to the holder of the remainder interest or to the grantor by reversion.

Legal Application of Life Estate
Life estates have a simple definition, but they are very challenging to refine. See estates, above.

Under portion of statute of frauds providing that a contract not to be performed within a year is invalid unless the contract, or some memorandum of the contract is in writing and subscribed by the party to be charged or his agent, the word “memorandum” implies something less than a complete contract, and the “memorandum” functions only as evidence of the contract and need not contain every term, so that a letter may be a sufficient “memorandum” to take a case out of the statute of frauds. Kerner v. Hughes Tool Co., 128 Cal. Rptr. 839, 845, 56 C.A.3d 924.
This word is used in the statute of frauds as the designation of the written agreement, or note or evidence thereof, which must exist in order to bind the parties in the cases provided. The memorandum must be such as to disclose the parties, the nature and substance of the contract, the consideration and promise, and be signed by the party to be bound or his authorized agent. See U.C.C. § 2-201.

Legal Application of Memorandum
Memoranda of Points and Authorities are the final, written prepared statements of the law of the case which the attorneys submit after discovery of the facts and law is complete. We have half a dozen or so. The problem is the lawyers either contradict themselves or do not refer to the evidence, so while they are informative, they are not persuasive and mostly inadequate to render an informed order and decision. These are linked elsewhere.

A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Terms “misconduct” when applied to act of attorney, implies dishonest act or attempt to pursue court or jury by use of deceptive or reprehensible methods. People v. Sigal, 249 C.A.2d 299, 57 Cal.Rptr. 541, 549. Misconduct, which renders discharge employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer’s interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Wilson v. Brown, La. App., 147 So.2d 27, 29.

Legal Application of Misconduct
Attorney misconduct may be grounds for sanction, and is governed by the Rules of Court and Rules of Professional Responsibility. Our definition is limited to attorneys. See also ethics above.

An error or falsity in the description of the subject-matter of a contract which deceives one of the parties to his injury, or is misleading in a material or substantial point. In commercial law, refers to a bailee inaccurately identifying, in a document of title, the goods received from the bailor.

Legal Application of Misdescription
Misdescription occurs n our cases in many places, but in no place so sadly as in Fuamete, where, after more than a decade, the partes still cannot describe the land or the deeds, and sales are demanded, even when the parcels are not of equal value, and there is no supervision or enforcement of the constructive trust which ought to exist. Another “misdescription” occurs in the warranty deed where Hall states the deed enforces the Olo Association Trust Modification, or some such variant, when no such document exists and no such modification occurred.

Any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. An untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead.
As amounting to actual legal fraud consists of material representation of presently existing or past fact, made with knowledge of its falsity and with intention that other party rely thereon, resulting in reliance by that party his detriment. Jewish Center of Sussex County v. Whale, 86 N.J. 619, 432 A.2d 521, 524.
In a limited sense, an intentional false statement respecting a matter of fact, made by one of the parties to a contract, which is material to the contract and influential in producing it. A “misrepresentation,” which justifies the rescission of a contract, is a false statement of a substantive fact, or any conduct which leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead.

Legal Application of Misrepresentation
This definition is included since it contains the strict delineation between “an assertion not in accordance with the facts” and actual fraud.

Happens when a party, having full knowledge of the facts, comes to an erroneous conclusion as to their legal effect. It is a mistaken opinion or inference, arising from an imperfect or incorrect exercise of judgment, upon facts, Page v. Provinces, 179 Okl. 391, 66 P.2d 7, 10; and necessarily presupposes that the person forming it is in full possession of the facts. The facts precede the law, and the true and false opinion alike imply an acquaintance with them. The one is the result of a correct application of legal principles, which every man is presumed to know, and is called “law;” the other, the result of a faulty application, and is called a “mistake of law.”

Legal Application of Mistake of Law
Mistake of law is an esoteric concept created by lawyers to set aside conclusions or results reached in error. The problem occurs when the error in a contract or agreement or deed, which must be made with innocence and without guile, works an unintended consequence to one party or another. We worked very hard to find a legal mistake in the application of the law of the case to the events as they occurred, so we might avoid the conclusion that the result was intentional. We failed. Therefore, the law of mutual mistake is briefly reiterated here to illustrate why mistake must be ruled out.

Information. The result of observation, whether by the sense or the mind; knowledge of the existence of Intelligence by whatever means communicated. Koehn v. Central Nat. Ins. Co. of Omaha, Neb., 187 Kan. 192, 354 P.2d 352, 358. Any fact that would be an ordinarily prudent person on inquiry. State ex rel. Gleason v. Rickhoff, Mo.App., 541 S.W.2d 47, 50. That which imparts information to one to be notified. Greene v. Ives, 25 Conn.Sup. 356, 204 A.2d 412, 415.
Notice in its legal sense is information concerning a fact, actually communicated to a person ny an authorized person, or actually derived by him from a proper source, and is regarded in law as “actual” when the person sought to be affected by it knows thereby of the existence of the particular fact in question. United States v. Tuteur, C.A.I11., 215 F.2d 415. It is knowledge of facts which would naturally lead an honest and prudent person to make inquiry, and does not necessarily mean knowledge of all the facts. Wayne Bldg, & Loan Co. of Wooster v. Yarborough, 11 Ohio St. 2d 195, 228 N.E.2d 841, 847, 40 O.O.2d 182. In another sense, “notice” means information, an advice, or written warning, in more or less formal shape, intended to apprise a person of some proceeding in which his interests are right to know and the duty of the notifying party to communicate.
Fed.R. Civil P. 5(a) requires that every written notice be served upon each of the parties.
A person has notice of a fact if he knows the fact, has reason to know it, should know it, or has been given notification of it. Restatement, Second, Agency § 9.
Notice may either (1) statutory, i.e., made so by legislative enactment; (2) actual, which brings the knowledge of a fact directly home to the party; or (3) constructive. Constructive notice may be subdivided into: (a) Where there exits actual notice of matter, to which equity has added constructive notice of facts, which equity had added constructive notice of facts, which an inquiry after such matter would have elicited; and (b) where there has been a designed abstinence from inquiry for the very purpose of escaping notice

Legal Application of Notice
Notice is so fundamental it is the first step after jurisdiction in any legal proceeding. If someone says, “I am going to build a house there,” that means only that there is a plan. This is vastly and legally different from the statement that “My father gave me some land he bought from Aunty over there,” or “I sold land my father gave me, but discovered he had not, after all.” Both go to acquiescence and concealment, but they may also be innocent, if at the time, made without knowledge of the rules or the law. But once put on notice of what the law and the rules might be, the duty to investigate springs, shifting the burden of proof to the one who claims the right to proceed. He or she must notice all interested and necessary parties once a defect or an objection is known.

A deed of conveyance operating by way of release; that is, intended to pass any title, interest, or claim which the grantor may have in the premises, but no professing that such title is valid, nor containing any warranty or covenants for title. In a number of states, a deed which purports to transfer nothing more than interest which grantor may have, if any, at time of transaction, and excludes any implication that he has any title or interest in described realty. Sabine Production Co. v. Guaranty Bank & Trust Co., La.App. 1 Cir., 432 So.2d 1047, 1052. Under the law of some states the grantor warrants in such deed that neither he nor anyone claiming under him has encumbered the property and that he will defend the title against defects arising under and through him, but as to no others.

Legal Application of Quitclaim Deed
Quitclaim deeds are often misunderstood. They only transfer what the owner owns, nothing more, nothing less. To use them to transfer valid title when one doesn’t own it to sell would be fraudulent, if one were aware of that. All of the Olo deeds were Quitclaim deeds. When you see “Quickclaim” Deed, it was perhaps typed by Carrie Sue, since this was first used in her Voice of Olo correspondence. See in contrast Warranty Deed, which Hall prepared for Frances to sign guaranteeing good title.

A common-law rule stating that in order for a future interest to be good it must vest after its creation (as at the death of a testator) within a life in being or lives in being plus 21 years plus the period of gestation of any beneficiary conceived but not yet born.

Legal Application of Rule Against Perpetuities
The High Court has ruled that the rule against perpetuities has no legal effect in American Samoa. It was introduced by Mike in 1978-1982 as a reason to bust the trust, which may have created the ruling. It has to do with how long a trust may last (not forever) and is always on the bar exam. The answer is always “c” because it is too hard. Mike raised it to terminate Lena’s trust, and was not successful. Unfortunately, the American Samoa statute does not explicitly limit the permissible duration of the enabled trusts, therefore much speculation occurs, and in retrospect, the causes the need for a declaratory judgment about life estates in this case. (src: Merriam-Webster)

A legal entity created by a grantor for the benefit of designated beneficiaries under the laws of the state and the valid trust instrument. The trustee holds a fiduciary responsibility to manage the trust’s corpus assets and income for the economic benefit of all of the beneficiaries. A confidence reposed in one person, who is termed trustee, for the benefit of another, who is called the cestui que trust, respecting property which is held by the trustee for the benefit of the cestui que trust. State ex rel. Wirt v. Superior Court for SPokane County, 10 Wash.2d 362, 116 P.2d 752, 755. Any arrangement whereby property is transferred with intention that is be administered by trustee for another’s benefit. A fiduciary relationship in which one person is the holder of the title to property subject to an equitable obligation to keep or use the property for the benefit of another. Scotti’s Drive In Restaurants, Inc. v. Mile High-Dart In Corp., Wyo., 526 P.2d 1193, 1195.

Legal Application of Trust
When a trustor or a donor (Lena) makes a trust, they give property and rights over it to their beneficiaries, either revocable (they can undo the gift) or permanently (irrevocable). Lena’s irrevocable trust is written under the jurisdiction of the courts but was strictly limited by the statute. Since she provided no disposition for the distribution after the beneficiaries’ interests terminate as a matter of law under the statute, the trust estate will revert to her personal estate in property, and will be distributed, under her will, whereby, she wanted “. . . all of her children treated equally,” and given the further understanding after the will contest that this was settled by the separation of Mike and therefore his children in the 1982 Agreement. The Restatement of the Law, Trusts, which is updated by the experts periodically, takes up many, many linear feet of the shelves in the law library, and further, requires citation to judicial opinion depending on jurisdiction and applicable statutes. This litigation was brought primarily to address this issue.

A form of waste in the law of trusts; distinguished from voluntary waste which is the direct, harmful act of a trustee upon the property in which he is under a fiduciary duty to protect, such as the destruction of a building forming part of the trust, or the cutting of trees on trust land. (src: Duhaime’s Legal Dictionary)

Legal Application of Waste
A trust must be managed and possessed by the trustee and beneficiaries so that the assets remain protected and not wasted for future beneficiaries or present beneficiaries financial interests. It could be (and was) said that the trust was seriously jeopardized by the influx of Tongans who disrupted the quiet enjoyment of the beneficiaries. It was also disrupted by the sales efforts which made the quiet enjoyment of the beneficiaries difficult as they contemplated legal liability for misrepresentations made by sellers who were not owners. Thus the litigation grew from seeds sown many years prior to filing, and as the beneficiaries watched impermissible “waste” occur.

A wild deed is a recorded deed that is not in the chain of title because a previous instrument connected to the chain of title was not recorded. A wild deed will not provide constructive notice to later purchasers of the property, because subsequent bona fide purchasers cannot reasonably be expected to locate the deed while investigating the chain of title to the property. A wild deed is also known as a thin air deed. (src: US Legal Definitions)

Legal Application of Wild Deeds
A wild deed is one that does not appear or does not relate to what appears in the register of titles. There are many of those at Olo and elsewhere.

The rest of the examples are without specific definition but pertain to a broader one. They are important to mention as they provide further understanding of the case.

Absent an emergency or other exceptional, temporary circumstance, anyone who assumes control over the assets of another becomes a fiduciary. No writing is required. See the common law and confidential relationship. Hall worked to remove Mike from fiduciary responsibility by insisting a writing was required.

This case is included as an example of how fraud is decided in American Samoa. The court merely rescinded everything, but did a creditable analysis of the elements which ought to have been proved. Attorney Sunia was on the case. The decision by the Honorable Elvis Patea appears here.

“Fuamete CF” is “shorthand code” throughout for the conversation-family about the various misunderstandings and/or transgressions at Fuamete, which are not repeated here, since till litigated. Mike claimed sole title in court in 2016 which remains to be litigated.

The “Kool Aid Correspondence” refers to a correspondence and other communications which took place over a period of time (about 2006-2007) when the grandchildren beneficiaries came to understand and resolve, as cousins, in a furiously rapid an abundant exchange of emails what stories, narratives, myths, etc. which had been circulated (and concealed) throughout the family to explain the Olo transfers. They began, continued and ended in the months which ensued as the 2006-2007 decisions were published and digested, and as the truth of these emerged. We decided everyone “drank the Kool Aid” in one form or another, but some are still afflicted.