24 Haw. 536 | Haw. | 1918
OPINION OF THE COURT BY
Henry A. P. Carter, deceased, by his last will and testament dated Angust 17, 1889, and admitted to probate in the supreme court of the Hawaiian Islands on December 30, 1891, after making certain specific bequests, devised and bequeathed the residue of his property to two trustees in trust to pay the income of one-sixth thereof to each his wife and five children for life and after the death of each of the beneficiaries he devised the one-sixth of the estate, the income of which was payable to such beneficiary for life, to the heirs of such beneficiary to be divided as then prescribed by the laws of Hawaii in cases of persons dying intestate. There are now four remaining beneficiaries, all at present absent from the Territory of Hawaii, and the present trustees are George R. Carter and John R. Galt, both of whom are also absent from the Territory. The will provides as folloAvs with reference to the appointment of trustees:
“Fourth. I appoint Peter C. Jones and Joseph O. Carter of Honolulu to be my trustees to cany into effect the trusts above specified and direct them and their associates and successors in trust to lease sell or coney any of my property and to reinvest the proceeds and balances of my estate in such manner as to them may seem best for the uses and purposes of the trusts hereinbefore declared.- I also direct that my said trustees shall yearly make a full and complete account of all receipts and expenditures to a justice of the supreme court of the Hawaiian Islands, and file before such*538 a justice whenever ordered au inventory of all property in their hands and how invested. I direct that no bonds be required of said Peter C. Jones and Joseph O. Carter, but there may be of their successors unless otherwise agreed to by the beneficiaries of the trust. Whenever the beneficiaries of this trust or a majority of them shall apply to a justice of the supreme court a third trustee shall be appointed to act Avith those herein named or their successors with the same powers.”
The four surviving beneficiaries deeming it advisable that the Hawaiian Trust Company, Limited, a local trust concern, should be appointed as a third trustee, in view of the absence from the Territory of the two existing trustees, have made application for that purpose — three of the applications being addressed to the presiding judge of the circuit court of the first circuit at chambers, in equity, and one of the applications being addressed to the chief justice of the supreme court of Hawaii.
In accordance with the desires of the surviving beneficiaries the Hawaiian Trust Company has petitioned the presiding judge-of the circuit court of the first circuit at chambers in equity for the appointment of'itself as a third trustee of the estate under the provisions of the will. The presiding judge of the circuit court at chambers in equity has reserved for our consideration the question whether the power of appointment of a third trustee under the will is exercisable by a justice of the supreme court or by a judge of the circuit court of the first circuit at chambers in equity and the matter is now before us upon the question thus reserved.
It was held by this court in Estate of Bishop, 23 Haw. 575, that where the will provided that vacancies among trustees should be filled by the choice of a majority of the justices of the supreme court, the power was given to them not in their judicial capacity but in their individual capacity because the testatrix could not confer jurisdiction
Answering, therefore, the reserved question submitted by