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

On 1he flhno day Justice MeCny signed an order 4hat
guardian may purchase the real estate mentioned IN sald
pefiton to wit the ONei premises adjoining the Hoare
premises on the Waikiki sde for the benefit of the OF
James Hoare MINOR and that said guardian may execute
mortgage for sum OF money not to exceed
$2eO fer the purpose of the purchase OF said
e premises general improvements of the buildings
of sa1d esateP
The N, premises referred to In that petition and
are Lot No 5 of Roberts Row.
The guardian purchased Lot by deed dated July %, 1884,
for the sum of 81 o1o and duly paid the consideration the
Administrator of the estate OF Nei ana on the 25h OF the
month executed mortgage to one Mary Brown OF Lots
g. and to the payment OF loan of So, 5O0 the
mortgage containing power of sale The 1910 paid for Lot
was part the $2,5e0 just mentioned The mortgage
passed by assignment Mary j. Brown the defendant
and subsequently the latter breach of condition. caused the
mortgaged premises be sold at public auction under the
power contained IN the and through trustee pur
chased all of the property at such sale.
The plaintiff upon coming of age instituted these proceedings
claiming that the Court had no jurisdiction to authorize the
mortgage of his property and that even If did have such
jurisdiction order made authorized neither the mortgagng
of Lot the insertion of OF sale IN the mortgage
The below trial by jury wayed upon these agreed
facts found for the defendants and the
the plaintiffs exceptions We shall consider the minor qles-
ions first.
mortgage Lot 5, we'll Lots y and The minutes of
proceedings had that petition show that he Court
consideration thought that would be for the interest OF said
minors that the prayer for authority to buy real estate
and mortgage said minors estate be granted, and it
accordingly ordered The ORDER above stated granted leave
mortgage Of said minors estate We of the
opinion that the Court intended grant and understood
granting the prayer of the petition this respect in toto
for authority mortgage Lot s. well Lots and
and that this intention is sufficiently expressed in the order
The "aid minors estate there used unlimited and
unqualified and refers the estate constituted at the time
of the of the mortgage and constituted at the
date of the order.
So Also we are opinion that insertion power
of sale the mortgage authorized by the Court in its
order For many prior 1881 it had been the custom
these Islands to such IN mortgages to
facilitate their foreclosure The Probate Court undoubtedly
of this practice and of the further fact that the borrowing
of money mortgage that could be forecosed only in
Court of Equity would be difficult if at all practicable
and perhaps costly The OF sale already at
incident of mortgages that authority
insert it should, think be implied from the power to mort
gage The Court to be presumed have had in mind
the usual of the word with all the remedies
the mortgage then and recognized by law Had the
Court desired have exception made this instance by the
omission of the power would undoubtedly have specified
the order On this subject Wilson 1ronp johnson
Iaw $40; Kent Com JAG, 49, In Chawner's WILL L. H.
Eq $50; Russell Ploice Is Beav 2S and Bridges Long
man, "a Beav. 30.
It is commended by some of the attorneys defendant
that the guardian this had and that all guardians
have under the law of Hawaii authority indie
penden of conferred by the Court mortgage the
wards real pleasure and that consequently mma
terial whether the Court had jurisdiction make the order
attacked 1t is that under the law of Hawaii
dams formerly had that right The Legislature recognized this
when 1851 declared the preamble to the Act of August
regulating guardians and wards herea by the
law of this Kingdom guardians have from time mmemoral
possessed and exercised dispose the real and
PERSONAL
That act however while does not in terms refer to the
guardians existing power to mortgage the real estate of
their wards nevertheless clearly shows and expresses the nten
ton of the Legislature repeal that provision of the
law of Hawaii and deprive guardians of all other powers
Heretofore possessed by them under said law and
by the Act expressly continued conferred them The
closing preamble And whereas proper
that the rights of guardians should be abridged and clearly
defined, therefore be it enacted etc.
Did the Court have jurisdiction to make the order ques
ton? Three possible of such jurisdiction have been
gested the law of Hawaii Statutes and the inner
power of of chancery under the law of
England With reference the first of these it would
sufficient say that of probate other similar
existed under the Hawaiian law and that therefore,
power could have been derived from that
No of ours except hereinafter stated either
expressly by implications confers the jurisdiction
leave guardians the real of their
wards The closest approach to is in the provision the
statute of 1851 whereby the court permitted under certain
authorize the sale of the real of minors
but power authorize sale admittedly does include the
power to authorize a mortgage
ArAo Al H.