The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-07-24

did they appear IN the proceedings
THE administrator noted an appeal
from this order.
Ne are unable to escape the conelu-
sion that the chief object of the adj
ministration proceedings IN this estate
has been the accumulation of attorney S
fees. When Kamaipiialii died he left
to his infant children, subject to his
widow S dover, an unencumbered home
stead and two pieces of income pro-
ducing real estate. The widow sought
Legal advice apparently with regard TO
the collection OF rents from the realty.
The decedent s debts were small in
amount and at that time no bills had
been presented to the widow. The doc
1 tor S bill of $50 was not presented un,
til after a suggestion by the attorney.
No debts are shown TO have been due
TO the decedent or to have been col
lected by the administrator. Advice
to the widow under these cireum-
stances that her interests demanded an
administration of the estate at an inl-
tial cost of $50 for fling the petition
was advice in the interest of the at
tornev and not of his client The sub
sequent action of the attorney In MAX
ing this charge as the basis for appear
ing on his own behalf, at an addi-
tiOnal cost of $50, to petition for the
appointment of another administrator
in the place of one unable to qualify,
| is also open to criticism. The attempt
ed sale of the minors real estate for
the purpose of paying these and other
anticipated fees was the elimination
of course of conduct of which we
must express our unqualified disap-
provaI.
/ Upon all possible occasions this court
| has endeavored to give notice that it
will not tolerate the practice of treat
| ing estates of deceased persons as fair
game for the mourning of unnecessary
or excessive legal expenditures. Not
| ley V. Brown, Is Haw. 575, $40. Few
probate eases, however, reach this court
and the responsibility must rest on the
circuit judges for the conscientious adj
ministration of estates. In the present
case as soon as a contest arose the cir
cunt Judge seems to have done what
was possible to straighten out the state
of affairs then existing, but it seems
! probable that if the matter had re-
manned uncontested the little heritage
of these infant Hawaiians would have
been wasted under the guise of legal
proceedings.
The proceedings for the sale of real
estate are so full of error that the or
der vacating the previous order of sale
was the only possible order to have en-
tered. In the first place no petition for
the sale of real estate should have been
entertained until the six months
period in which creditors might present
their claims had elapsed. 1t is only
when all the claims against the estate
are before the court that the probate
Judge can make an intelligent order
concerning the amount of real estate
to be sold. The contrary course may
result, as here, in the administrator
selling real estate to pay claims pre-
scented after the petition, which have
never been scrutinized by the court.
If an estate should unexpectedly prove
nsolvent the sale of real estate for the
payment of claims first presented would
result in a preference to those credi-
tors.
In the second place there was no
showing at any time that the personal
estate had proved to be insufficient for
the purpose of paying debts within
R. L. Sec. 1855. No attempt had been
made to pay debts from the personality
and it appears to have been assumed
for jurisdictional purposes that the per-
sonalty would sell exactly at its APP
praised value, which is by no means
necessarily the case.
In the third place the allegations in
the petition are so manifestly made
quate to confer jurisdiction under
r. L. Sec. 1855 that it is difficult to
see how they passed the scrutiny of
the circuit judge. Under our statute
real estate cannot be sold to pay ex,
penses of administration but only to
pay the debts of decedents. The petit
tion on its face alleges the personally
to be worth $3.50 and the debts $50. |
The bin presented subsequently on
which the administrator relies cannot !
cure the original lack of jurisdiction,
which in all eases depends upon the |
allegations and not on facts which may |
exist outside of the record. Vanfeet, !
Collateral Attack, Sec. so.
In the fourth place, as ruled by the |
circuit judge in vacating the order, the |
fact that the minor heirs of the dece- |
dent We're not given notice nor rep |
resented at the hearing of the petition !
for sale is in itself a sufficient ground |
for vacating the order of sale. These /
children are the owners of the real |
estate and their property cannot be or I
dered TO be sold upon the allegations |
of a third party without notice to them
either actual or constructive. 2
Woerner, Administration, Sec. 466. /
The auctioneer s notices of the pro,
posed sale, published after the order of
sale, cannot cure the defect of lack
of legal notice before the order was
made.
The circuit judge left the question
of costs in aheyance until the final de-
termination of the case, so we make no
order concerning them, but suggest that
the final allowance of any costs or fees
out of this estate should be subject to
the most rigid scrutiny and TO strict
showing of good faith. In the view
which we have taken concerning the
sale of real estate the costs
in that connection can in no event be
charged against the estate.
The order appealed from is affirmed