In Re the Trusts Created Under the Terms & Provisions of the Last Will & Testament of Da Silva

OPINION OP THE COURT BY BANKS, J. The record in this case shows that Antonio Gomes da Silva died at Honolulu on or about the 12th day of February, 1926. He left a last will and testament by which he devised and bequeathed to Frank Gomes Silva and Union Trust Company, Limited, as trustees, all his estate, to manage and control the same and collect the income therefrom for the benefit of his widow and children. On the 22d day of March, 1926, upon the petition of Frank Gomes Silva and Union Trust Company, the will was duly admitted to probate. No executor being named in the will Frank Gomes Silva and Union Trust Company were duly appointed and qualified as administrators with the will annexed. On the 9th day of May, 1927, the said *79 administrators having duly filed, and the court having approved their final accounts, they were, by order of the court, relieved and discharged from their trust as such administrators and the estate was finally closed. It was also ordered, adjudged and decreed that all of the rest, residue and remainder of the estate of the testator remaining in the hands and possession of Frank Gomes Silva and Union Trust Company, administrators with the will annexed, be distributed to them as trustees under the will of the testator, Antonio Gomes da Silva, deceased. On the 8th day of May, 1928, the said trustees filed in the circuit court of the first judicial circuit their first annual accounts and prayed that the same be considered, and, if found conformable to the truth, be allowed. The accounts were referred by the presiding judge to a master for examination. On December 7, 1928, the master filed his report. The accounts shoAved that the trustees had charged the estate with trustees’ commissions aggregating the sum of $454.90. The master in his report objected to this amount and recommended that the trustees be surcharged Avith the sum of $173.43, thus reducing the trustees’ commissions to $281.47. The presiding judge adopted the recommendation of the master and ordered the surcharge to be made. The accounts Avere otherwise approved. The trustees have appealed from the order regarding the surcharge. The single question involved is whether the trustees’commissions should be calculated in accordance Avith the provisions of Act 183, L. 1927, or in accordance Avith section 2544, R. L. 1925. Under the provisions of section 2544 the trustees were entitled to two and one-half per cent on moneys received as capital of the estate and the schedule of ten per cent and seven per cent on the income, which, as shown by the master’s report, will amount to $281.47. Under the Act of 1927, which Avas amendatory *80 of section 2544, the trustees, if this Act is applicable, were entitled to receive as their commissions one per cent of the value of the trust at its inception, two and one-half per cent on principal received, two and one-half per cent on principal disbursed, and the schedule of ten per cent and seven per cent on income received, which Avould amount to the sum of $450.90, which was the amount charged by the trustees in their annual accounts. The Act of 1927 Avas approved by the gOATernor on the 27th day of April, 1927, to take effect on January 1, 1928. The last clause of the Act reads: “These provisions shall apply as well to future accounting in existing estates as to neAV estates.” “Existing estates” undoubtedly means estates or trusts which had been created before January 1, 1928, and were at that time in existence. We think it equally clear that “future accounting” means accounts filed in court in the usual course after that date. If the Act had provided that the increased commissions which it authorized could only be charged against existing estates for services rendered or property coming into the hands of the trustees after the Act became effective it might very well be said that for services rendered and property coming into the hands of the trustees prior to that date the commissions alloAved would be limited to the rates established by section 2544. But such is not the language of the Act. Its language \Tery clearly conveys the thought that if there Avere trust estates, in existence at the time the Act became effective, and thereafter there Avas an accounting in such estates the increased commissions are allowable Avbether the dealings of the trustee, upon Avhich the accounting was based, Avere before or after the date when the Act became effective. “Accounting is the rendering or delivering of a formal statement of one’s dealings.” 1 C. J., p. 602, §10. This Avas done by the trustees of the da Silva estate on the 8th day of May, 1928. The trus *81 tees having taken office on the 9th day of May, 1927, the accounting was made within a year from that time and also within the time prescribed by Rule 20 of the circuit court of the first judicial circuit, which provides that it shall be the duty of every trustee, within ten days next after the expiration of one year from the date of his appointment, to make his annual accounting. The trustees are thus relieved of any suspicion of delaying their accounting in order to bring themselves within the provisions of Act 183. The trust estate itself came into existence on the 9th day of May, 1927, that being the date when the property belonging to the estate was distributed to the trustees. It was therefore an “existing estate” on the date when Act 183, by its terms, became effective. The first annual accounting was made in good faith, also after the Act became effective. Under these circumstances we think the commissions provided by Act 183 should have been allowed. W. J. Robinson and Robertson cG Castle for the trustees. The decree appealed from is reversed and the case is remanded with instructions to approve the accounts.