The Hawaiian gazette., 1894-04-03

lay of over $500, 00U aud the issue of
bonds was limited to Sl35 600. see
no reason to doubt this security. The
only loss that the estate has suffered
is that of the Union Iron Works Com
pany bonds, amounting to 5000 and
a prospective loss on the Seattle
Building Company bonds which may,
in view of the evidence be considered
loss. Both of these Investments
were made by Mr.. :. NJ. Damon.
whom Mr.. Allen had selected to act
for him during his absence from the
country. Certainly Mr.. Allen exer-
cised due care and sound discretion in
| selecting one who has for so long "A
time occupied such prominent
place in the financial circle of the
country. The same rule applies to
Mr.. Damons conduct as to Mr.. Allen,
and it would require the clearest
| proof of neglect To justify a finding
| that Mr. Damon had failed to exer-
| else due care ana prudence in making
| these investments. The will author
| ized investments in the United States
as well as in this country, and Mr..
| Damon found it almost impossible,
although holding position that kept
him in constant touch with the finan-
cial public, to place money that was
accommodating in this country where
| it would earn interest. Mr.. Damon
| followed the lead of the late
ii. A. p. Carter in the Seattle in
vestment, who invested a large sum
| in that enterprise; and in the Union
Iron Works bonds investments were
made by the Treasurer of Queen
Emma Legacy Fund, Bishop & Co.,
and G.. n. Wilcox; and although
| both of these investments have proved
unfortunate and have resulted in a
loss, yet do not find such a state of
facts as would Justify me in placing
the burden upon the administrator.
One word as to the general steward
ship of Mr.. Allen. 1t was suggested
by counsel for the beneficiaries that
ample securities could have been had
at the time these investments were
made at from four to five per cent, in
timating that such investments would
have been proper and satisfactory to
the estate. If MIR. Allen had adopted
that course it would have resulted in
his having realized for the estate in
the way of income a little more than
S45 900, instead of the 100000 which
he has secured, the difference being
much more than the losses com
plained of.
Thirdly-As to the rule to be applied
in fixing the commission to he allowed
the administrator. On filing his first
account about year after his ap-
pointment Mr.. Allen credited himself
with the sum of 81, $50. 80 as commis-
sions, being at the rate of ten, seven
and five per cent on $l55, 1858, the
a of f0l
Banning was present in court when
the account was approved, and made
no objection. Mr.. Hatch claims that
that account was finally settled and
was practically the end Of the admin
istration of the estate, and that Mr..
Allen was entitled to his commissions,
and that he has since acted in the
capacity OF trustee, and that the find
ing of Judge Preston, approving the
accounts is now res judicdt0. L
think not. This was not final ac-
count within the meaning of our
practice, nor was any particular item
In controversy so a5 to raise an issue
to be tried and determined, nor was
the point expressly waived, which /
understand to be be essential in order
that finding may become res Judi
cata.
In Field VS.. Hitchcock, II Pick. 4O6,
Shaw, G. j., said: "On an appeal
from the decree of the Judge of Pro-
bate the question is whether the set
tlement of former account by an ex-
ecutor can be pleaded as a final
account so as to secure him from rem
dering a further account when cited
for that purpose, and not only preclude
the Probate Court from any further
adjudication, but from all further in
quiry. The Court are of opinion that
it was not competent for the Probate
Court to decide that any account of
the executor was final, so as to bar
all further inquiry in regard to mat
ters not included in the accounts
already settled and to oust the Pro-
bate Court of its jurisdiction"
In order that Mr.. Allen could be
entitled to compensation as admins
traitor in full he must have closed his
accounts as such and have qualified
as trustee. He was refused his dis
charge when he applied for it on filing
his third account because administra-
ton was not complete.
In Prior VS.. Talbot, 10 Cush, %, 8.
Shaw, G. j., said: "The appellant
was appointed executor of his fathers
will and was directed to set apart a
certain part of the estate, it first being
converted into money, to appropriate
the income to the widow for life and
then distribute the principal. This
imposed a duty upon the exec
utor to retain the principal and
invest it, and he must stand
responsible until he has discharged
himself of this implied trust. His
duty is to administer the estate ac-
cording to the will and such is the
condition of his bond. Here he was
appointed executor and trustee. If
for greater convenience he wishes to
close his account as executor and open
a new account as trustee he must give
bond in the capacity of trustee and
charge himself in one capacity co in.
stdnti, and by the same act by which
he claims his discharge in the other.
"The appellant having received the