In re McBryde's Estate

• Decision Date: 15 March 1892
• Citation: 8 Haw. 472
• Parties: ESTATE OF DUNCAN MCBRYDE.
• Court: Hawaii Supreme Court

8 Haw. 472

ESTATE OF DUNCAN MCBRYDE.

Supreme Court of Kingdom of Hawai'i.

March 15, 1892.

DECISION APRIL 26, 1892.

APPEAL FROM JUDD, C.J.

Syllabus by the Court

Executors may not turn over the performance of their trust to a business firm, and return the accounts of the latter into Court as their own executors' accounts; nor may they have executors' commissions on such accounts. They should decline the trust or perform it.

The will devised the income of the estate to the widow for life. Money which was due the testator in his lifetime, upon being received by the estate, is not income, but capital, and must be accounted for as a part of the reversion.

Money received by the executors on account of a sale of an interest in the estate, made up of land, chattels real, water and pasture franchises, and including the use of tools and working animals, is not income, but capital, and must be accounted for as part of the reversion.

The management of the income of the estate, after the same has vested in the widow, is no part of an executor's duties and commissions may not be charged therefor by an executor.

F. M. Hatch, for H. A. Widemann, Executor.

Thurston & Frear, for devisees.

JUDD C.J., BICKERTON AND DOLE, JJ.

DECISION OF JUDD, C.J., APPEALED FROM.

This is a petition for allowance of final accounts and discharge of the executors and administrator. The accounts were referred to a master, who reports no commissions due, on the following facts:

Duncan McBryde died May 16th, 1878, leaving a will by which his widow, E. A. McBryde, is entitled to all the income of the estate during life, with remainder to testator's children. The executors of said will are E. A. McBryde, H. A. Widemann (by appointment October 6, 1878, after the probate of the will), and Alexander McBryde, who became executor May 2d, 1882, under the will, upon becoming of age.

The estate, at the death of Mr. McBryde (May 16th, 1878) was a cattle ranch, consisting of the land of Wahiawa and the leaseholds of Kalaheo, Lawai and Eleele, and certain real estate in Scotland. There is no inventory of any personal property, and no question concerning this arises.

The only liability which appears to have been outstanding against the estate was a debt due Messrs. T. H. Davies & Co., of $2, 614, for advances made to Mr. McBryde during his lifetime, for planting cane. Messrs. Davies & Co. continued to make advances up to February, 1879, amounting in all to $11, 498.38, at which date Mrs. McBryde personally assumed and paid the said sum due Davies & Co., and Mr. Dreier bought one-half interest in the plantation for $21, 000, which was paid to Messrs. Schaefer & Co. and placed to Mrs. McBryde's private account.

In 1884 Mrs. McBryde, in her name, and Mr. Dreier purchased the land of Eleele for $5, 500, Mrs. McBryde's one-half share of the purchase money being paid from the profits of the plantation. In 1886, Mrs. McBryde, in her own name, purchased the land of Lawai for $45, 500; the purchase price was paid from moneys held to her personal credit by Messrs. Schaefer & Co., $28, 500, and by Messrs. Davies & Co., $17, 000.

The ranch has been managed by Alexander McBryde, who has received a salary therefor. All produce of the ranch has been consigned to Davies & Co., and the proceeds placed to Mrs. McBryde's private account. The plantation has been managed by Mr. Dreier, the half owner, all produce of the plantation consigned to Schaefer & Co., and one-half of the profits placed to Mrs. McBryde's private account. Such gross receipts from the ranch have amounted to $162, 531. Mrs. McBryde's one-half share of the net profits of the plantation amount to $158, 914. The executors have never handled any of the receipts or expenditures from either the ranch or plantation. The services of Messrs. Davies & Co. and Messrs. Schaefer & Co. have been compensated for by Mrs. McBryde individually.

The purchase of the two lands above named, and the investment of some $20, 000 belonging to Mrs. McBryde, were negotiated by Mr. Widemann, for which services he was paid the respective sums of $250 and $1, 000 from her private moneys. Other investments have been made by Mrs. McBryde of her moneys, without consulting Mr. Widemann.

The accounts submitted as the executors' accounts consist of condensed transcripts of the accounts of Messrs. Davies & Co. and Messrs. Schaefer & Co. with Mrs. McBryde.

Commissions are claimed by Mr. Widemann upon the whole of the receipts of Davies & Co. and Schaefer & Co., as above set forth. The commissions at the statutory rate on the receipts and disbursements of the ranch and plantation would amount to $15, 293.70. The statute allows commissions to executors, administrators and guardians for receiving and paying out moneys, " ten cents for every dollar up to and not exceeding $1, 000; seven cents for every dollar over $1, 000, up to and not exceeding $5, 000; five cents for every dollar over $5, 000, and such additional allowance for their actual expenses as the court or judge shall deem reasonable." Section 1281, Civil Code, Comp. Laws, p. 421.

The widow was entitled to the entire income of the estate of the deceased during her life, which was devised directly to her, and she received it from the agents of the cattle ranch and the sugar plantation, who kept the accounts of the respective enterprises.

There is no doubt that the services of Mr. Widemann, in negotiating the sale of half the plantation interest and the contract of copartnership with Mr. Dreier, were very valuable to Mrs McBryde, as also were his services in the purchase of Eleele and Lawai. These enterprises have turned out well. But...