The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-05-25

the unmarried children in the past. The
sole basis of removal is hostility and
! HAS and surrender of her discretion to
others. Where it appears that large dis
| cretionary powers are vested in the
! trustee. as is manifestly the case I'M
/ der this document, an application for
| the removal of a trustee will be enter
| tanned upon the ground of surrender OF
discretion to another and hostility.
In Wilson v Wilson, 145 Mass, 400,
a person beneficially interested, who
was father of the trustee under his
wife's will, petitioned TO have the trus-
tee, his son, removed. The Court say:
''The relation between the father and
the son created by the will is one of ex-
IRENE delicacy. The trustees have full
power to determine what allowance
the father shall have, limited only by
the duty of exercising fair and rea-
sonable discretion. Every one instinct
lively feels that a state of mutual hos
tility between the trustee and such
beneficiary, arising after the trust was
created, caused in part by the fault of
the trustee, units him to a greater or
less degree for the fair execution of
the trust. But from the nature of the
case it would be very difficult, if not
impossible, to find distinct proof that
in exercising his discretion, the trustee
was actuated or Influenced by such hos
tility. And yet it may be apparent that
according to the laws which generally
govern human action, he could not be
relied on to act fairly towards the bene-
iciary. We think that in a case like this
where the duty of the trustee is so
delicate, where the hostility has arisen
since the trust was created, and is at
tributable in part to the fault of the
trustee, where the existence of the
hostility would naturally pervert his
feelings and judgment, it is competent
for a Justice to remove a trustee with |
out further proof of misconduct, upon
the ground that the removal appears es-1
sential to the interests of the bene- |
fciary."
And in Mcpherson V. Cox, SO U. S., |
419, the Court say: Where a trustee |
is charged with an active trust, which |
gives him some discretionary power
over the rights of the ccStui que trust,
and which brings him in constant per-
sOnal intercourse with the latter, it may
be conceded that the mere existence of
strong mutual ill-feeling between the
parties will, under some circumstances,
justify change by the Court"
Upon the propriety of the amendment
[ have already held that the amend
ment did not make out new case and
was properly made.
Upon the question of nOn-joinder, |
I'm of the opinion that Henrietta Whit
ng and Tony Along are necessary par
les Their rights in the subject matter
md object of the bill are Identical with
some of the compliments, and respond
,nts have the right to require that they
should be joined for their own prOtec-
ion under a decree made, and to pre-
yent subsequent suits involving the
Iuestions litigated now Mr.. Along re-
elves certain rights under the trust
leeds, and he is also necessary party.
10 excuse for nOn-joinder is alleged |
Except their absence from the country.
The bill is multifarious in that it |
eeks to procure an account from Julia
Along and Maria Humphreys and her |
husband for the same fund.
The compliments declare and rely
Ipon the trust deeds, and they cannot !
ontradict and vary the terms of the
anne by parol The allegations of for
ner marriage and illegitimacy do con- 5
radict the deeds and are demurrable {
Demurrers are sustained with leave ,
D the compliments to amend.
ALFRED w. CARTER,
First Judge, First Circuit Court.
Kinney-Ballou for plaintiffs. Hart {
yell, Thurston and Stanley for Julia f
Afong A G. NJ Robertson for Maria
and A. S. Humphreys.
Dated Honolulu, H. l., May %, 1896 3