23 Haw. 575 | Haw. | 1917
OPINION OP THE COURT BY
In the will of Bernice P. Bishop, after making a number of devises and bequests, the testatrix devised the residue of her estate to five trustees therein appointed, to be held and used by them in the erection and maintenance in the Hawaiian Islands of two schools, one for boys and one for girls, to be called the Kamehameha Schools, a portion of the income for each year to be devoted to the support and education of orphans and others in indigent circumstances, giving the preference to Hawaiians of pure and part aboriginal blood. The estate is very large and of great value. Considerable discretion is left to the trustees in the execution of the trust and the furtherance of its objects. The testatrix named as such trustees her husband, Charles R. Bishop, Samuel M. Damon, Charles M. Hyde, Charles M. Cooke and William 0. Smith, and under the paragraph naming them (14) are found the following provisions: “I direct that a majority of my said trustees may act in all cases, and may convey real estate, and perform all of the duties and powers hereby conferred; but three of them at least must join in all acts. I further direct that the number of my trustees shall be kept at five; and that vacancies shall be filled by the choice of a majority of the justices of the supreme court, the selection to be made from persons of the
A written suggestion of the disqualifications of the justices of this court who made the said appointment of William Williamson as such trustee was filed in this court on the 2d day of December, 1916, wherein it is suggested that the said justices “have a pecuniary interest, direct or indirect, in this cause.” The power of appointment delegated to a majority of the justices of this court in and by the said provision of the will aforesaid is a naked power without reward or pecuniary benefit to the justices or any of them. For this reason the suggestion as to the disqualification of the justices appointing the said William Williamson to fill the said vacancy was denied; and it was held, and is held, that the said justices are not disqualified from presiding at the hearing and determination of this appeal.
The ground upon which the learned circuit judge based his decision that the appointment of William Williamson by the justices of this court was without authority and void is that at the time of the death of the testatrix and prior thereto the-supreme court of Hawaii and the justices thereof exercised original jurisdiction in equity, and by the rules of law and equity the court and the. justices thereof were vested with the power to fill vacancies in the matter of trustees generally; that it was the intent of the testatrix to vest such power in the court and not in the individuals
In Tucker v. Est. of Metcalf, Chief Justice Allen, as chancellor, and Hartwell, Justice, sat in an equity case and made
Construing the provision in the will of the testatrix touching the filling of vacancies among the trustees under the will as we do makes it unnecessary to review the many authorities to which we have been cited to the effect that when the judge of a certain court charged with the sole exercise of original jurisdiction .of a particular subject,, for instance, equity or probate, is vested with the power of filling vacancies among the trustees óf a trust by the instrument creating the trust, that the grantor intended to vest the court with such power and not the. judge as an individual who presides over such court, such authorities not being in point here. The delay and confusion that have
The learned circuit judge took the view that the word “choice” in the provision of the will of the testatrix under consideration is synonymous with and -means “nominate,” and does not- mean “appoint,” and he therefore concludes that the power of approving or rejecting a “nomination” made by the justices or a majority of the justices of this court rests with him. With this view counsel for Charles E. King does not concur, as in the argument on the appeal he expressed the view that the word “choice” is synonymous with and means “appoint,” and with such view we fully agree.
The decree appealed from is reversed and the cause is remanded to the circuit judge sitting at chambers in equity with instructions to dismiss the petition asking for the approval of the appointment of William Williamson in sucessibn to Samuel M. 'Damon resigned; and for such further proceedings as are consistent with the views herein expressed. ' •