The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-03-04
Is PRoBATE-January, 1880.
Before His Honor Judge McCuLLY.

DtIOTe his IlouOI uuuSC olNNbLLi
In the matter of the estate OF r. b. Neville,
deceased. The judgment in this matter was not
published at the time, and has now been placed
at the disposal Of the Press. We now give such
portions of it as are of public interest, as bearing
on the duties and liabilities Of trustees and ex-
ecutors -
. 1t would appear that the guardians, who
were in the first place the executors of the will,
settled the business of the estate by making col
lections and payment of liabilities, with the eX-
ception of the $1,000 mortgage. This was pay
able before the death Of Neville, and. in my own
view, ought to have been paid off by the ex-
ecutors. Their accounts show that they had
enough cash to meet the note, or they might have
sold the real estate. as it appears they applied to
the Court for license to do. but discontinued the
proceeding.
{" The rents have been credited, and ont of the
original fund and the rents payments have been
made from time to time for the support of the
wards. The items of expenditure seem proper
and of reasonable amount and it is right to say
that the two wards have been well brought up
and educated
The cash on hand, when the executors rem
dered their account, September 10, 1870, was
$l7O5 IL, but without change of executors COM
missions. At the rendering of the account, Nov.
26, 1879, the guardians charge the estate with n
debt of S5S.32. and there remained only the
Mona property. ellll mOTIGaHeu lOr SIOOU. IL -
IN evidence that property in that district Will not
bring as good a price now as it would when the
executors took the estate and il Is evident that
a wooden building is not worth so much by the
ten years during which it has been subject to
decay. | have, however, announced that | will
not review the action of the executors in holding
the house and land and that, as to the mortgage
on which they have been paying interest, they
must charge themselves with interest at the same
rate, being one per cent. on the funds in their
possession.
81 feel it my duty to censure the mode Of
treating the estate. Trust funds should not be
merged in the private business OF trustees, but
should be kept separate, and invested in the best
securities which the country affords. English
authorities go further. Lord Kenyon, as cited in
Story's Equity Jurisprudence, says - |: was
never heard of, that a trustee could lend an IN
iant s money on private security. This Is a rule
that should be rung IN the ears Of every person
who acts in the character Of a trustee-fOr an act
may very probably be done with the best and
hOnestest intention, yet no rulo in a Court OF
Equity is SO well-establIshed as this See Sec
ton 1874.
." do not see how this case can escape the
operation of the principles established in this
Court in Rosa Bartlett Duncan's ase-3rd Ha-
Waiian, p. 843. In that case the guardian merged
the wards estate with his own, and reared her.
When called to account, he showed that he had
merged and consumed her properly, bat claimed
that he had incurred a greater expense than the
income of the property. if it had been put at in
terest. lie had kept no accounts yet the Court
held that he was responsible for the principal, if
he had diminished or consumed it without license
from the Court. This is an extremely SIM lie
rule, and the only safe one for the property OF
minors. What a guardian may spend is the
income, or so much thereof as may be required.
He may not reduce the principal, as he may not
sell the real estate without license obtained from
the Court.
81 therefore decide that the guardians hold
now of this estate the sum which they charged to
themselves at the rendering of accounts as execu-
tors-ess, however, the commissions which they
had a right to charge
On appeal, this decision was sustained by the
Full Court, in the following terms -
Having heard the arguments Of counsel on
both parts, and considered all the circumstances
of the case, we find it similar in every respect to
that of Rosa Bartlett Duncan, and therefore feel
Obliged to adopt the foregoing decision of Mr..
Justice McCully, as rendered in Chambers.
CHARLES G. HARRIS.
A. FRANCIS JUDD.
LAWRENCE MCCULLY.
August u. 1880"