The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-02-14


appoint guardians and administrators and again compel all
guardians administrators and executors perform their
tive trusts and all respects for the discharge of
their Official duties They may of moral untne
other good and sufficient cans any administrator guar
dian or executor, appointed by will or otherwise
Did then the court of chancey have inherent Jurisdiction
common law to authorize mortgages of the estates of inozs
The authorities not agreed this point
The majority perhaps of the state that indie
pendenty OF statute, court of equity has authority
change the nature Of infants estate from real personal
or from personal real and of hen specifically
that the court has inherent power authorize mortgage
the minors real estate Kent and Story, the hand
declare that the power resides court to change the prop
ey OF infants from real personal and from personal
real wherever appears to be manfesty for The infants
beneft and Maddox be of the opinion The
statements made by the are based largely upon
reported decisions see generally schonlers Dom Rel PIP
$50, 49, Spence's Eq Jrs, p 612 Bspham Eq p $50;
Pom Eq Jnris, $780, Woener Gdslp p. III Maddox
Ch 26S; Story Eq. Juris s1357; Kent Com, p 23O
Turning to the DECISIONS unable satisfy
OF the correctness OF the assertion often repeated the books
that the preponderancesof authority favor of the view
that the court of cancery has inherent jurisdiction the
matter Not all OF the of cited the subject
available to but far have been able ascertain
the courts of Rhode Island Massachusetts, and Virginia
expressed the opinion that that has such jurisdiction
while those of New jersey Montana Tennessee Alabama Iii
nos and perhaps Georgia. have held the contrary Thurs
tom Thurstoa, R. /. 3o1 McCann T. Randall III Mass
80; Faulkner o. Dauis, IS Graft (ya) 651 t9s Am Dec
e9s); SnouhM SnorhiH n. j. Eq. %, n. ". G. H. Co
q. Smith, 38 Pac lMonana) 225; Hurt 4. Long IS s. W
(Tenn) 972 Goodman Winter GA Ala 40, 49, (3S Am
j
have not been uniform, the having held against the
jurisdiction in Rogers Dill, Hill 416 1s44); Onderdonk
Mott 81 Barb 113 1s6); Horton hceoy II N Y 2t
1S71); Bdttel Toarey IS n. Y 294 CS75); Jenkins
Fahc Is n Y 361 s7s), and perhaps in other
cases. and in its favor IN Salisbury, 3 Johns. Oh. 34s
1818), and Wood q. Mdther, IS Barb 4S2 (1S62).
What here said of New York may also be said of Eng
land. In Taylor Phillips, Yes ST. % (1750), Lord
Hardwcke said: "There instance of this Courts binding
the inheritance of infant by any discretionary of the
Court As personal things the composition of debts
be taking the Court legislative authority doing that which
properly the subject of private BILL In Simpson Jones,
Russell q Mylne 365 (S31 held that the real estate
of female infant would not be bound by settlement
temptation of her marriage made with the appreciation Of the
court and that the had jurisdiction give her the
power of disposition of her property during her minority Rus
set Russe, Molloy $685. is often cited authority
against the existence of the jurisdiction CalUet Godfrey
Beapl06 lS439 Field Encore, 10 Beav. 1876 1854,
support the On the other hand in Firth Cam
ero, L. R. 10 Eq Gs. 173 Qs71 authority granted,
unde the general jurisdiction of the court for the raising of
money mortgage ofthe real Of infants be used
repairing certain building the ground that the house
tumbng down. and that it would be for the benefit Of the
infants follow that So, Re Jackson, L. II
81 CHI Div 7S9 {1SS2) where the court said Il will
direct inquiry whether and what repairs of houses which
part of the infants property absolutely to be
done think that this jurisdiction should be jealousy exer
csed only which actual salvage ANY
of the parties will have liberty to apply in chambers to
raising such may be required for the doing of
repairs which may be certified be absolutely necessary In
Seby D. Cooling % Beav 41S 1s57), order made
authorizing of infants real estate for OF
debts and Inuoood T,cne, Amb 49, is said to be
another authority in favor of the jurisdiction.
Upon this of the authorities adopt that view which,
principle, seems to us to be correct and just
In England the Sovereign regarded pdrtns pdr'ds
and uch having the duty cast him OF protecting and
caring for the persons and property of those subjects who by
infancy for other incapable OF caring
themselves their property The Sovereign acted in this
respect through the of chancery his and duties
being regarded delegated to the latter for the men
toned among these that of the appointment
supervision and removal of guardians the acting largely
through these officers details of its Guardians had
the authority subject the supervision of the court to for
manage the property of their wards and to use the income
and also the principal the personal estate when necessary tor
the support maintenance and education of their wards The
main for the refusal of the in instances to
jurisdiction order change in the nature OF the
property of infants from real into PERSONAL to bind the
Inheritance appears have been that to do would be to inter-
rupt the of descent of real property contrary to the
settled policy of the country he law of prlmogenure was
then full vgor and regarded with great favor by the
courts and of every of an estate necessarily
interrupted of descent and justly regarded as
cherished right 1t