The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-05-01

Mr.. Banning left for the Coast Marcl
%, 1898, intending to be gone unit
the fall of that year, but returned b,
the same steamer, because he fount
that his mother was dissatisfied witt
the securities allotted to her, and afte
his arrival in Honolulu he took step
towards the institution of these pro
ceedings.
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 l9, 1898. The amended pc
tition alleged that the order discharg
ing the administrator was made under
a mistake of fact as 10 the terms of the
| will of the deceased, shared alike by the
Judge and the administrator; and that
the administrator had not filed proper
accounts, and that the securities in
which the funds of the estate We're 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 a
misapprehension of material facts and
conditions, and in consequence of con-
cealment of material facts and con-
ditions, and undue influence exer-
cised" by the administrator After
| the hearing, decision was rendered
revoking the order of discharge, and
requiring the administrator to file his
accounts for approval as of the 18th
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, 1898. The
seventh account contained state
ment of the affairs of the estate up 10
the 3lst day of July, 1898.
On the 18th of August, 1898, Mrs.
Banning filed a petition for the re-
mOval of Mr.. Allen as administrator,
and for the appointment of J. A.
MagOon in his place, setting forth as
reasons the facts alleged in the
amended petition for the revocation
OF the order discharging the adminis-
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. \ new
bond was filed on the 9Th day of Sep
tember, 1898, with approved sureties.
The Masters report was filed on
October 1st, 1898, and the beneficiaries
filed a motion to confirm the Masters
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 Court |
on the motion of the beneficiaries to |
disallOw 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 when
the administrator was discharged by |
the previous order. IL support of his
motion Mr.. Banning alleges: "That
the securities represented by his re-
ceipt were not of equivalent value to
the sum of $Tl 1899 81, nor anywhere
near said sum, as said Allen then well
knew" and "that said receipt was
signed by him under rmisapprehension
and ignorance of material facts and |
affecting said receipts and
supposed to be represented
thereby, induced and resulted from in
tentional repression and in conse-
luence of the intention and culpable
failure ana neglect on the part of Mr..
Allen to properly advise him before
signing the receipt" of the true cOndi-
ion and character of the investments
and many other allegations of like
.enOr and effect.
Mr.. Allen had a dual function to
perform, one, as administrator, the
)ther, as trustee of the estate, the in
Vestment and management of which
or the benefit of the legatees were
,Ontided to him. AS to the first, aside
rom the question of the allowance of
he commissions claimed, nothing
more need be considered; as to the
after, two questions are presented,
me- ulu Iue IIuSlee pIOpeIIy anu ldlJn-
ully fulfil his duties? the other, did the
settlement with B. r. Banning affect
lis obligation as such trustee The
citations of Mr.. Allen to the bene-
iciaries were such as to require him
o act cum U6erriH1d tide. The
rustee was obliged to exercise that
prudence which is used by men in the
Investment of their own funds, hav-
ng regard not only to the interest to
De made, out to the security of the
principal and to the permanency of
he investment. This is the doctrine
tated by Mr.. Justice Gray in the case
f Lamar V. Micron, 112 u. S. Rep,
6S. Aside, however, from this emf
ent authority, the will in express :
erms directs the investment of the (
state to be made in good securities, !
nth lower rates of interest, in pref
renee to high rates with correspond !
lg risks. {
No statutory provision limiting the /
lvestment of trust funds to specific /
ecurities exists in the Hawaiian 4
stands, and this Court cannot go
lrtner than to hold that the trustee
lust act with honesty nrudance | .