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

the rule to be applied In tIxIng the
to be allowed the adj
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
Intentionally withheld any informa-
ton that he was bound to disclose.
On the other hand, / find that MIR.
Banning had every opportunity to
examine the investments and to ap
prove or disapprove OF them prior to
the settlement with the admins
traitor, and the allegation that Mr.
Allen used undue influence IN Cd
tanning the settlement IS equally
unfounded. 1t was a transaction
between man and man, and over
which the Court had no control; 1t
was simply matter OF admlnlstra-
ton.
In Cowdin VS.. Perry, IL Pick. oil,
the Court say "But the question
to whom and at what time legacy
or distributive portion under Will IS
to be paid by the executor IS one or
which the Judge of probate has no
Jurisdiction. Any decree directing
the executor to pay or not to pay
legacy to any particular person or
at what time legacy should be PAID,
whether made upon or without
notice. would be extra-judlcial and
| would afford the executor no justin
cation. 1t would in this respect be
| similar to a decree directing pay
ment of a bill when the estate is
solvent, and as such a mere nulllty.
As to a waiver of his claim on the
part OF the plaintiff, we think there
are not facts enough to support IL.
The doctrine of waiver is a most rea-
sonable one, and where person
especially in the discharge OF some
| Office or duty does an act which he
supposes to be correct, and those
interested knowing the facts assent
to and affirm the act, the first prlnci-
pies of justice require that they
should be bound by it."
Ii Mr.. Banning had any claim
upon Mr.. Allen he has certainly
waived it by his action; not merely
in signing the receipt, but by all that
he did prior to his leaving Honolulu
on the 18th of March, 1898; all his
acts tend to prove that he considered
| that Mr.. Allen had done we'll.
A payment to Mr.. Banning of his
| share of the estate in securities was
justifable.
In the case of PerrIe VS.. Vreeland,
80 N. j. Eq. Rep. 11S, where invest
ments had been made in real estate,
4 a &c RI m
for the fund, but is not bound to pay
it over in cash. He may pay 1T over
in the property itself"
1 am therefore of the opinion that
the administrator is entitled to credit
himself with the amount OF the
securities and money delivered to
MIR. Banning in accordance with the
settlement of February 15, 1888.
Second-As to the propriety of the
| investments. In an examination OF
| the numerous cases in the American
and English reports bearing upon
this subject, I find that although
there is a wide difference of opinion
as to what are proper securities for
the investment of funds belonging to
estates in the hands of executors and
administrators, yet as to tue general
rule regulating the conduct of exec
utors and administrators In the
management of the estate, the Courts
are practically unanimous. In the
absence of any statutory provisions
limiting investments to certain spe-
citic securities, the Courts have not
been inclined to adopt any rule that
would work a hardship on persons
| who have been intrusted with the
care of the funds of others by re-
curing of them greater intelligence,
| Judgment or discretion than that OF
the ordinary business man, but have
required of them the strictest integ-
rity, and that too to the minutest
deteil. The Courts we'll say that to
impose burdens upon them who are
capable and willing to undertake
such matters that are not put upon
others in the transaction of their own
business, would result in making II
impossible to find men who would
dare to accept such employment
Not now discussing as to what KING
of investments Courts have ap-
proved, 1 propose to sight few
cases touching upon the general rule
In Harvard College VS.. Amory,
Pick. 465, the Court say "Trustee'
are Justly aud uniformly considered
favorably, and it is of great import
aoce to bereaved families and or
phans that they should not be helC
{ to make good losses n the depre
citation of stocks or the failure o
, the capital itself which they hell
; | In trust, provided they conduc
, themselves honestly and Discreet
and carefully, according to the ex
r listing circumstances, III the dis
I charge of their trusts. Ii this wer
q held otherwise, no prudent ma
4 would run the hazard of losse
e which might happen without an
q neglect or breach of good faith
Q This case was cited and approve
q in Brown VS.. French, 125 Mass. Al
q Tn Whitney VS.. Peddicord, 63 Ii