The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-04-28

Mr.. Banning gave MIR. Alien
power of attorney to act for MIN IN
the care of his half of the estate,
which was dated February %, 1898.
Mr.. Banning left for the Coast March
%, 1898, intending to be gone until
the fall of that year, but returned by
the same steamer, because he FOUND
that his mother was dissatisfied with
the securities allotted to her, ana AFTER
his arrival in Honolulu he took steps
towards the institution of these pro-
ceedings.
The original petition to vacate the
order discharging the administrator
was filed May %, 1898, for which there
was substituted an amended petltlon
filed June 10, 1898. The amended Pc
tition alleged that the order dlscharg-
ing the administrator was made under
a mistake of fact as to the terms OF the
will of the deceased, shared alike by the
Judge and the administrator; ana that
the administrator had not filed proper
accounts, and that the securities III
which the funds of the estate were In
vested were speculative, uncertain,
shifting and unsafe, and that the re-
ceipts which had been filed for the dis
tributive shares were given "under
misrepresentation of material facts ana
conditions, and in consequence OF con-
cealment of material facts and con-
ditions, and undue influence eXer-
cised" by the administrator. After
the hearing, a decision was rendered
revoking the order of discharge, ana
requiring the administrator to ME ms
accounts for approval as OF the Iotn
day of February, 1898. Two accounts,
| the sixth and seventh, were filed on
| the 18th of August, 1898; the sixth
account included the transaction OF
| the administrator up to the 10th OF
January, 1898. This account was re-
ferred to F. Wundenberg as master on
| the 4th of September, 1893. The
| seventh account contained state
| ment of the affairs of the estate up TO
the 31st day of July, 1898.
| On the 18th of August, 1898. Mrs.
| Banning filed petition for the re-
| moval of Mr.. Allen as administrator,
and for the appointment of j.. A.
Magoon in Id place, setting forth as
reasons the facts alleged III the
amended petition for the revocation
of the order discharging the admins
traitor: and also that there was no
bond on file conditioned for the exc
cution and performance of said trust.
The motion was heard on the 4th OF
September, 1898, 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 Sep
TENDER, 1898, with approved suretles.
The Masters report was filed on
October 1st, 1898, and the beneficiaries
filed motion to confirm the Master
report so far as the items of COM
mission were concerned; and also to
have the Master report upon the pro-
priety of the investments. A decision
was rendered, by which the rule was
laid down, governing the allowance
| 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 COurl
on the motion of the beneficiaries to
disalIow the accounts of the admins
traitor so far as certain investments
are concerned; and also upon the mo-
, ton of B. r. Banning to disallow the
accounts and to charge the admins
traitor with the whole estate, includ
| ing the shares accepted by him Wher
; the administrator was discharged by
, the previous order. III support of bis
, motion Mr.. Banning alleges: "Tha
: | the securities represented by ms re-
| ceipt were not of equivalent value u
| the sum of 81 1893 "a, nor anyWher'
: near said sum, as said Allen then wei
, ! knew" and ''that said receipt wa
t signed by him under misapprehenslol
[ and ignorance of material facts ant
. conditions affecting said receipts ant
t securities supposed to be represente'
: thereby, induced and resulted from In
a territorial repression and in conse
: quence of the intention and culpabl
f failure and neglect on the part OF MI
: Allen to properly advise him befor
= signing the receipt of the true condi
!. ton and character of the investment
and many ether allegations of lik
# tenor and effect.
Mr.. Allen had dual function t
d perform, one, as administrator, tn
q other, as trustee of the estate, the 1n
h | vestment and management OF which
q for the benefit of the legatees wer
Il confided to him. AS to the first, asid
= from the question of the allowance {
i. the commissions claimed, nothln
more need be considered; as to tb
is latter, two questions are presented
n one, did the trustee properly and faltl
/. fully fulfil his duties? the other,d did Tia
t. settlement with B. r. Banning ate(
+ his obligation as such trustee. Th
is relations of Mr.. Allen to the benz
,e ficiaries were such as to require hl1
# | to act cum u6errdno0 tide. TT
, trustee was obliged to exercise tht
~ prudence which is used by men in tt
It Investment of their own funds, hay
\ ing regard not only to the interest
Al be made, out to the security of Il
= principal and to the permanency {
"A the investment. This is the doctriI
le stated by Mr.. Justice Gray in the cas-
}. of Lamar V. Micron, 112 L. S. Rep
a | 46S. Aside, however, from this EN-
is nent authority, the will in expire
& terms directs the investment OF II
q, estate to be made in good securltle
1r with lower rates of interest, in pre-
" erence to high rates with correspon
le ing risks. =,
E. No statutory provision limiting Il
d. investment of trust funds to specIf
a. securities exists in the Hawaila
s. Islands, and this Court cannot
a | further than to hold that the trust
must act with honesty, prudenc
~ faithfulness, and exercise sound oil
a. | erection in placing trust funds for /