The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1908-01-17

Diedrich.
property distributed to those entitled
There is a clear distinction between
the annual or periodical and the final
accounts. The approval Of the one Isl
ex parte and without notice while I'M
the case of the other It can only bel
made after notice to all concerned. The
one is made annually or oftener at the
discretion of the judge, the other only
when the estate is fully administered.
The one is for the information of the
Judge and the convenience Of the adj
ministrator or executor in the man
agement of the estate, the other Is al
final adjudication of the rights and
obligations of all concerned. The one
is only prima facie correct and is sub
iect to correction for errors or mis-
takes in it thereafter discovered with
out an appeal or any direct proceed
ing to review it or set it aside, (See
Estate of Banning, 8 Haw. 453, 45O,
the other is conclusive and final unless
set aside on an appeal or direct pro-
ceeding therefor or impeached for
fraud. The approval of an annual ac-
count, being made without notice to
any of the parties interested is not
/ conclusive as against one who doe2
not appear, and in that sense it is not a
final order, but, If a party interested
does appear and objects and has a
hearing on his objections and then APP
peals, the order is final as to such par
ty, at least in the sense Of its being
appealaDle. We are of the opinion,
therefore, that the appeal should not
be dismissed on the ground that the
order appealed from is an onterlocu-
tory one.
= The first claim of the appellants is
= that the entire account should be dis
: allowed for the reason that the &C
1 counting party has confused and mix
: ed up his duties and transactions as
/ executor and as trustee. This seems to
4 be, valid objection. The will names
the same persons as executors and as
q trustees the latter being residuary de-
visees and legatees, but the trustees
j., are only entitled to the property aftei
the administration has fully ceased
and the property ordered to be dis
: tributed. Some of the confusion ma!
have arisen because the circuit judgt
sitting in probate appointed these per
p. sons as trustees. That was improper
= and Irregular, as a circuit judge sit
= ting in probate as such has no juris
= diction to appoint trustees, CLong v
Holt, IS Haw. 29O, 29O, and besides
\ the will in this case specifically pro
= vides who shall be the trustees. Fur
=, thermore, the probate judge as sucl
has nothing to do with the account
of the trustees The case just cited o
Long " Holt Is an example of how
somewhat similar confusion kept tn
u administration Of an estate going un
= necessarily for more than forty years
$ II does not appear from the recor
p why the administration OF this estat
le was not promptly wound up In tn
10 usual time unless, as uggested at tn
lie argument there was a suit pendin
D. which prevented such action. But, l
any event, it should be wound up
ot soon as possible and the property dis
tributed
Ut The next objection of the appellant
is in effect that T. b. Lyons, the pei
c. son who makes these accounts as e'
I'd ecutor, is indebted to the estate in tn
is sum of $3.50 and interest and that b
p should pay the same before being a
OF lowed commissions. With this col
&C. tention we are inclined to agree.
r. is lntlmated in the brief OF appell'
re that he has not admitted the claim an
or that possibly he does not owe 1t. !
"a pointed out above, however he swo
mt to 1t himself in the inventory on I'll
I'D and It almost looks like trifling wi
IA, the court to make any such plea
he Continued on Page Six