The Hawaiian gazette., 1894-04-03

AS 10 waiver OF MS Chill Oh Iut
part of the plaintiff, we think there
are not facts enough to support it
The doctrine of waiver is a most rea-
sonable one, and where a person
especially in the discharge of some
office or duty does an act which be
supposes to be correct, and those
interested knowing the facts assent
to and affirm the act, the first princi-
pies of justice require that they
should be bound by it."
If 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 29th of March, 1898; all his
acts tend to prove that he considered
that Mr.. Allen had done well.
A payment to Mr.. Banning of his
share of the estate in securities was
justifable.
In the case of Perrie VS.. Vreeland,
33 N j. Eq. Rep. 11S, where invest
ments had been made in real estate,
it was said: "He is bound to account
for the fund, but is not bound to pay
it over in cash. He may pay it 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
Mr.. Banning in accordance with the
settlement of February Is, 1893.
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, / find that although
there is 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 the 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-
cific securities, the Courts have not
been inclined to adopt any rule that
would work hardship on persons
who have been intrusted with the
care of the funds of others by re
quiring 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
detail. 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 it
impossible to find men who would
dare to accept such employment.
Not now discussing as to what kind
of investments Courts have ap-
proved, l propose to sight few
cases touching upon the general rule.
In Harvard College VS.. Amory: 8
Pick. 465, the Court say Trustees
are justly and uniformly considered
fsvorsbly, and it is of great import
aace to bereaved families and Or
phsns that they should not be held
to make good losses in the depre-
citation of stocks or the failure of
the capital itself which they held
in trust, provided they conduct
themselves honestly and discreetly
and carefully, according to the ex-
isting circumstances, in the dis
charge of their trusts. If this were
held otherwise, no prudent man
would run the hazard of losses
which might happen without any
neglect or breach of good faith"
This case was cited and approved
in Brown vs.. French, 125 Mass, Ais.
In Whitney vs.. Peddicord, 63 Ill,
251, the Court say "As we have
had occasion to remark in another
case at the present term, a degree
of strictness is not to be applied in
the construction of their acts or
those of guardians which would
deter responsible men from the &C.
ceptsnce of such positions. When
they have acted with reasonable
diligence and an honest desire to
do their duty faithfully, a mere
error of judgment in what was
fairly matter of judgment or opin-
ion should not make them liable
merely because subsequent events
have shown that they did not pur-
sue the wisest course"
Again, in Ormiston VS.. Olcott, "a
n. Y. 343: "Ehe rule should not
be made arbitrary and infiexible,
and SO rigid as to admit of no pos
sible exception, for it is merely an
or consequence of the
broader and admitted proposition
that the duty of trustee in max
ing investments is to employ such
diligence and such prudence as in
general prudent men of discretion
and intelligence in such matters
employ in their own like affairs.
+ And while no rule of proper
responsibility should be relaxed, yet
where he acts honestly and in good