The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-03-31

are concerned; and also
upon the motion of 3. 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, MIR. Banning
alleges: "That the securities repre-
sented by his receipt were not OF
equivalent value to the sum OF
7I,39954, nor anywhere near said
sum as said Allen then we'll knew"
and ''that said receipt was signed by
him under misrepresentation and
ignorance of material facts and CON
ditions affecting said receipts and
securities supposed to be rep
resented thereby, induced and
resulted from Intentional repression
and In consequence of the intention
and culpable failure and neglect on
the part of Mr.. Allen TO properly
advise him before signing the re-
ceipt" of the true condition and
character of the investments and
many other allegations of like tenor
and effect.
Much new evidence was intro
duced at the hearing and the testl-
mopy taken at the previous trial was
also admitted by stipulation to form
a part of evidence to be considered
at this time. The case was ably and
exhaustively argued on behalf OF the
beneficiaries by A S. Hartwell, Esq,
and w. A. Kinney, Esq, and re-
sponded to by f. nj. Hatch, Esq, for
the administrator. Elaborate briefs
were filed by both parties.
So far as / am informed this is the
first case of its kind that has arisen
In this country, and for that reason
no assistance is to be had from the
decisions Of our Court; nor is there
any statute law to look to to estab.
lish the rule which is to govern in
the decision of the issues presented
Owing to the magnitude OF the inter
ests involved and the possible bear
ing that the outcome OF the case may
have upon kindred matters In this
country, I have devoted many hours
of anxious and sincere study to the
case before reaching my conclusion,
and now propose to treat the subject
In the manner In which 1t has
evolved itself to me, irrespective OF
the order In which the points We're
made by counsel.
1t was claimed by counsel for the
beneficiaries that an unlntentlonal
wrong had been done Mrs. Banning
by obtaining from her the renuncla-
ton of her right to act as executrlx,
and that Mr.. Allen, having seen tit to
assume the sole management OF the
estate, under the provisions OF the
will, he subjected himself to larger
responsibility than if he had seen to
it that Mrs. Banning had continued
to act in accordance with the will.
II seems not to be allowable to ap-
point an administrator with the will
annexed unless the persons named In
the will as executors have either all
renowned their rights or have failed
to appear when cited; but upon such
remuneration or failure to appear 1t
becomes the duty of the Court to
make such appointment If the will
does not make provision for hlllng
the vacancy. 80
Schouler on Elk. & AID. Secs ~
and 81.
The will before us nominated and
appointed Mrs. Banning and Charles
II. Bishop to act jointly and sever
aIIy. the trust to devolve upon the
survivor of them. Mrs. Banning re
pounced the right and MIR. Bishop
declined to act. The will made no
provisions for the further appoint
ment of an executor. 1t became
necessary then that an administrator
with the will annexed should be ap-
pointed, and it was within the discre-
ton of the Court to appoint one or
more persons to act as such. Mrs.
Banning having approved OF MIR.
Aliens appointment as temporary
administrators, and having volun-
tarily renowned her right to be ap
pointed executrIx and having nomi'
mated Mr.. Allen to be the admins
traitor, it does not appear that MIR
Allen has done Mrs. Banning any
wrong, either Intentionally or unln
tentionally, and / cannot see that
Mr.. Allen Is chargeable with any
larger responsibility nor bound tc
exercise any greater degree OF eau
ton or discretion in transacting the
business of the estate, except so fal
as the provisions of the will control
than if he had been appointed al
administrator of an intestate- Ih'
assets of the estate at its inception
consisted entirely of personal prop
erty, except single lot of land va
ued at $3.50; and although in Ordir
airy cases of administration 1t Is no
within the province of an admin:
traitor to make investments, yet L d
not find that Mr. Allen has in thi
case exceeded his duty In settling u
the estate. Perhaps the admiDistr'
ton may have been continued Ionge
than was absolutely necessary, bu
after the request for discharge mad
by MIR. Allen when filing his thir
account, which was refused by tt
Court, administration seems to hay
been continued by consent, awaitin
the distribution of the estate whe