24 Haw. 414 | Haw. | 1918
OPINION OF THE COURT BY
The appellants, Father H. Valentin and the Hawaiian Trust Company, Limited, are the trustees under the will of John Ena, deceased. During the year 1917 it became necessary in order to liquidate certain outstanding indebtedness of the estate to sell certain stocks and bonds owned by it. This sale was made by the Hawaiian Trust Company, one of the trustees, which is a member of the Honolulu Stock and Bond Exchange and as such is regularly engaged in the business of a stock broker. The usual commissions prescribed by the stock exchange were charged by the Hawaiian Trust Company for the sale of the stocks and bonds sold for the Ena estate. The total amount realized from the sale amounted to about $3000 and the commission thereon charged by the trust company ivas $12.87. An account of the sale was contained in the sixth annual report rendered by the trustees to the court. This report was approved by the court with the exception of the item of $12.87 so charged by the trust
The appeal presents the one question, that is to say, whether a trustee may properly charge the usual brokerage fees in addition, to his regular commission when, acting as a broker, he sells corporation stock or bonds belonging to the trust estate, and Avhere, as in this case, the sale is approved by the court and no claim is made that the sale Avas not necessary and proper nor that the amount of the brokerage fees was unreasonable.
It appears from the record in this cause that by the rules of the Honolulu Stock and Bond Exchange members are required to charge certain fixed commissions on sales and purchases of corporation stocks and bonds and that the penalty for a breach of such rules is suspension from the exchange. The court below held that the statutory commission allowed to the trustees constituted the sole compensation to Avhich they are entitled. • It is in be noted that in the statute of this Territory prescribing a schedule of fees to be allowed persons acting in a fiduciary capacity trustees are not mentioned. (See Sec. 2542 R. L.) The rule has, however, been established, first by custom and then by decisions of the courts of the Territory to the effect that trustees are to be allowed the same fees which are by statute allowed to executors, administrators and guardians. “We have no statute that prescribes the compensation of trustees, but we believe it has been the practice here, and as a rule, elsewhere, under similar circumstances, to follow in such cases the statutes which prescribe the fees of executors, administrators and guardians.” In re Estate of Lunalilo, 13 Haw. 317, 318. But where, in a case like the present one, the trustee has rendered services to the estate which are professional in character and are outside of and in addition to the duties usually
The order appealed from is reversed and the cause remanded to the court below with instructions to allow the compensation for the sale of the stock and bonds claimed by the trustee.