The Hawaiian gazette., 1894-04-03
Elaborate briefs

hrSt case OF It's KlnQ tnht mas arisen
in this country, and tor 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 iu
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, 1 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 it has
evolved itself to me, irrespective OF
the order in which the points were
made by counsel.
1t was claimed by counsel for the
beneiciaries that an unintentional
wrong bad been done Mrs. Banning
by obtaining from her the renuncia-
tion of her light to act as executrix,
and that MIR. Allen, having seen fit 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.
1t 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
renounced their rights or have failed
to appear when cited; but upon such
renunciation or failure to appear it
becomes the duty of the Court to
make such appointment if the will
does not make provision for filing
the vacancy.
Schouler on Ex. & Ad. Secs. AZ
and 81.
The will before US nominated and
appointed Mrs. Banning and Charles
r. Bishop to act jointly and sever
ally, the trust to devolve upon the
survivor of them. Mrs. Banning re
Dounced the right and Mr.. 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
tion of the Court to appoint one or
more persons to act as such. Mrs.
having approved of MIR.
Aliens appointment as temporary
administrator, and having volun-
tarily renounced her right to be ap
pointed executrlx and having nomi
mated Mr.. Allen to be the admins
traitor, it does not appear that Mr..
Allen has done Mrs. Banning any
wrong, either Intentionally or unin
tentionally, and 1 cannot see that
MIR. Allen is chargeable with any
larger responsibility nor bound to
exercise any greater degree of eau
ton or discretion in transacting the
business of the estate, except 80 far
as the provisions of the will control,
than if he had been appointed an
administrator of an intestate. The
assets of the estate at its inception
consisted entirely of personal prop
erty, except a single lot of land val
ued at $3.50; and although in ordin-
sry cases of administration it is not
within the province of an admins
traitor to make investments, yet I do
not find that Mr.. Allen has in this
case exceeded his duty in settling up
the estate. Perhaps the administra
tion may have been continued longer
than was absolutely necessary, but
after the request for discharge made
by Mr.. Allen when filing his third
account, which was refused by the
Court, administration seems to have
been continued by consent, awaiting
the distribution of the estate when
Mr.. Banning should arrive at the
age of majority.
As to Mr.. Aliens conduct as ad-
The inventory of the
estate as filed by Mr.. Allen as tempo
rary administrator placed its value at
S182,416. $l39, 1926 of which con-
sisted of credit on the books of Ed.
Hofschlaeger & Co.; the balance was
in the form of promissory notes
to $50, ,42465. According
to the Masters report the estate
realized $156,04915. / do not pro-
pose to trace this amount down to
the present account, leaving that to
such action upon the Masters report
as may be found proper, considering
the only questions presented for
decision to be-frst, the force and
effect of the act OF settlement be-
tween the administrator and Mr..
secondly, the propriety of
certain Investments specifically OBJ
iected to by the beneficiary; thirdly,
the rule to be applied in fixing the
to be allowed the ad-
First-I find no reason for chang
ing my views upon this point from
those manifested in my former de-
cision. The evidence has failed to
show that Mr.. Allen either misrepre-
sented the condition of the estate or
withheld any informa-