The Hawaiian gazette., 1894-04-03

10Th, 1885, from w N. L. AlleD, al
ministrator of the estate of j. +. ..
Banning, deceased, my one-half ct
the estate as follows: In bonds,
S34 400; notes secured. S36, ,675; cash,
1924 "a; total, ST., 1893 "a; amounting
to seventy one thousand, three hun
dred and ninety nine and 81 100
dollars. Signed, B. R. BANNING"
The receipt of Mrs. BanDing's
share was in the same form and for
the same amounts, but signed by w.
f. Allen as her attorney in fact.
These receipts do not show the
the actual basis of settlement so far
as the division of securities is con-
cerned, but manual separation of
the securities took place Immediately
after the receipts were filed, in ac-
cordance with previously arranged
schedule, Mr.. Banning making his
own selection, he receiving $4,000
in bonds and S2S.125 in notes, max
ing a total OF S6S,125. The a!lot-
ment to Mrs. Banning was S27, 600
in bonds and S45, ,255 in notes; total,
S72,225. The difference between
these amounts was adjusted between
the parties, but in what way is not
quite clear.
Mr.. Banning gave Mr.. Allen a
power of attorney to act for him in
the care of his half of the estate,
which was dated February 2S, 1898
Mr.. Banning left for the Coast
March 20, 1893, intending to be gone
until the fall of that year, but re
turned by the same steamer, because
he found that his mother was dissst
isfed with the securities allotted to
her, and after his arrival in Homo
lulu he took steps towards the insti-
tuition of these proce. dings.
The original petition to vacate the
order discharging the administrator
was filed May 2S, 1898, for which
there was substituted an amended
petition filed June 10, 1898. The
amended petition alleged that the
order discharging the administrator
was made under mistake of fact as
to the terms of the will of the de-
ceased, shared alike by the judge and
the administrator; and that the ad-
ministrator had not filed proper ac
counts, and that the securities in
which the funds of the estate were
invested were speculative, uncertain,
shifting and unsafe, and that the re-
ceipt which had been filed for the
distributive shares were given "under
a misapprehension of material facts
and conditions, and in consequence
of concealment of material facts and
conditions, and undue influence ex,
ercised" by the administrator. After
the hearing a decision was rendered
revoking the order of discharge and
the administrator to file
his accounts for approval as of the
18th day of February, 1893. Two
accounts, the sixth and seventh, were
filed on the 18th of August, 1898;
the sixth account included the trans
action of the administrator up to
the 10th of January, 1893. This &C
count was referred to F. Wunden,
berg as master on the 4th of Sep
tember, 1893. The seventh account
contained statement of the affair
of the estate up to the 31st day of
July, 1893.
On the 17th of August, 1893, Mrs.
Banning filed petition for the re-
moval OF Mr.. Allen as administrator,
and for the appointment of ]. A.
Magoon in his place, setting forth as
reasons the facts alleged in the
amended petition for the revocation
of the order discharging the admin
istrator; and also that there was no
bond on file conditioned for the ex
ecution and performance of said
trust. The motion was heard on the
4th of September, 1893, and denied,
on the ground that no cause had been
shown for the removal of Mr. Allen.
A new bond was filed on the 9th day
of September, 1893, with approved
sureties.
The Masters report was filed on
October 1st, 1893, and the benefciaries
filed a motion to confirm the Masters
report so far as the items of commits
sion were concerned; and also to have
the Master report upon the pro-
priety of the investments. A deci-
sion was rendered, by which the rule
was laid down, governing the allow
ance of commissions, but the motion
to re-refer to the Master was denied
on the ground that the subject of
the enquiry was more properly for
the Court.
The matter is now before the
Court on the motion of the benefi-
ciaries to disallow the accounts of
the administrator so far as certain
investments are concerned; and also
upon the motion of B. r. Banning to
disallow the accounts and to charge
the administrator with the whole
estate, including the share accepted
by him when the administrator was
discharged by the previous order. In
support of his motion, Mr.. Banning
alleges: "That the securities repre-
sented by his receipt were not of