13 Haw. 242 | Haw. | 1901
OPINION OP THE COURT BY
The executor of the will of the decedent • appeals from an -order of a Circuit Judge of the Eirst Circuit sitting as a Court of Probate, charging him with the sum of $340. as cash on hand •at the time of the institution of the trust and with the sum of •$364. being interest for one year at eight per cent on $4550. 'being funds of the estate withdrawn from the bank by the appellant, and requiring him to pay a master’s fee of $100. out of Lis. commissions.
The facts, in brief, are as follows: the will of the decedent was, after contest, admitted to probate and the appellant appointed executor on August 6, 1897. The contest against the •admission of the will to probate continued in various proceedings until April 15, 1898, when the Supreme Court rendered a de
Passing by tbe possible objection that no exceptions were noted by tbe executor to tbe master’s report and without reference to tbe rule contended for by tbe appellees that tbe finding of a master is entitled to as much weight as tbe verdict of a jury •and that it must be upheld if there is any evidence to support it, we think that the finding of tbe master and of tbe Circuit Judge must be sustained on the evidence. The executor filed bis sworn inventory on August 12, 1897, six days after bis appointment, and in that inventory charged himself with tbe sum of $340., describing it as “cash in J. S. Walker’s band.” Tbe presumption is that be did bis duty and promptly after bis appointment •ascertained what property tbe deceased left and took possession ■of tbe same. Tbe item was not entered by tbe executor in •Schedule A. of his accounts and tbe explanation offered by him at tbe bearing before tbe master was that tbe entry in tbe inventory was made upon information furnished by one Eleazar Lazarus, a son of the deceased, to tbe effect that tbe sum mentioned was in tbe safe of the decedent at tbe time of bis death, and that, upon opening the safe, no such sum was found there. The executor further testified that tbe safe was opened in tbe presence of said Eleazar, and, perhaps, of tbe widow. Eleazar died in 1898, and tbe widow was not called as a witness by tbe executor. Tbe master reports that on many occasions he requested tbe executor to exhibit for bis examination bis original books of accounts but that tbe executor failed to do so. Upon the evidence, the finding as to tbe $340. is affirmed.
The order that the executor pay the master’s fee of $100. out of his commissions, which amounted to $744.70, was in effect a disallowance of commissions to that extent. In view of the circumstances of the case, we see no reason for disturbing the order in this respect.
The order appealed from is affirmed.