Princess’ will
has faced many
legal arguments

The judicial decisions have shaped
the current reading of thedocument

By Ian Lind

At the center of the controversy over Kamehameha Schools/Bishop Estate is the will of Bernice Pauahi Bishop.

Trustees refer to the will as their "bible" and vow to uphold the sanctity of its provisions, while in public utterances they accuse critics of trying to undermine Bishop's clear, original intent. Beyond the emotional rhetoric, however, the meaning of the will is neither clear nor self-evident.

A century of legal arguments, court battles, and judicial decisions have shaped the current interpretation more than the will's words written in 1883 and amended in 1884.

Aspects of the will ranging from the role of Supreme Court justices in selecting trustees to the powers of trustees to sell land, spend accumulated funds, or build new facilities, have all been argued, appealed and settled by Hawaii and federal courts.

Key rulings have dealt with the extent of trustees' powers, role of the attorney general and courts in reviewing actions of the trustees and the process for appointing new trustees.

The courts have ruled that trustees have relatively broad powers to buy and sell real estate and other properties, and invest or expend the proceeds when, in their best judgment, it is necessary for maintenance of Kamehameha Schools or for the good of the estate. Although trustees in the early years of the estate did not know whether they could take even simple actions without court approval, a series of court decisions have gradually extended their powers until they are recognized to have broad discretionary authority.

But a minority of trustees, even a minority of one, can challenge actions of the majority and demand a court review of contested decisions.

The authority to interpret the will or deviate from its provisions lies with the Circuit Court, and not with the attorney general or the individual justices of the Supreme Court. The Circuit Court interprets the meaning of the will, reviews the actions of the trustees and can step in if trustees are guilty of neglect or abuse trust responsibilities.

The court has rejected some trustee decisions over the years, including a series of major development contracts entered into in the early 1970s, when those have strayed from the narrow purpose of the trust or were determined to have been made recklessly.

The attorney general represents the public interest in the trust. The attorney general can take proposals or concerns to the Circuit Court, but cannot directly impose its decisions on the trustees except by way of the court, according to past decisions.

The majority of justices of the Supreme Court, acting as individuals and not officially as a court, have the authority to appoint trustees under the will, and their decisions are final and not subject to confirmation or review by the Circuit Court.

Among the prior court decisions:

1897: Trustees were told to make annual reports to the Circuit Court, despite the will's direction that such reports be submitted to the chief justice of the Supreme Court. At the time Bishop's will was drafted, probate and estate matters were handled by the Supreme Court. These responsibilities were transferred to Circuit Court in 1892, and all matters, including Bishop Estate, went with them, the court said.

1897: The Supreme Court ruled that a trustee could not simply resign but must ask the Circuit Court for permission to resign. The court also recognized the attorney general as "the proper person to represent those who have a public interest in a trust of this nature."

1898: Bishop Estate trustees did not have to get prior court approval before each sale of land necessary to raise funds to establish and maintain Kamehameha Schools, the Supreme Court ruled. The court should not intervene unless it appears "that the trustees are abusing the discretionary powers vested in them."

1910: The will directs Bishop Estate trustees "to devote a portion of each year's income to the support and education of orphans and others in indigent circumstances," and the trustees wanted to know what this provision meant. The Supreme Court examined the language, grammar, and punctuation of the will and decided it called for support and education at the Kamehameha Schools and does not require broader, independent support programs.

1917-18: Trustees should be appointed by the justices of the Hawaii Supreme Court, acting as individuals, according to a decision by the Supreme Court, later upheld by the 9th U.S. Circuit Court of Appeals.

The will says appointments should be made by a majority of the justices of the Supreme Court. When Samuel M. Damon resigned in 1916, both the Circuit Court and Supreme Court justices claimed the right to appoint a successor. In a relatively brief decision, the Supreme Court ruled the justices retained the appointment powers, and the federal appeals court agreed.

In the past, when estate matters were the responsibility of the Supreme Court, cases went to individual justices for decisions, and could later be appealed to the full court. The will called for trustee appointments to be made by the majority of the justices, a procedure not officially followed in other estate or probate cases. The court reasoned that the will of a private person could not impose a new legal requirement on the Supreme Court so it must have meant to give the powers to the justices acting as individuals. That decision has determined the appointment process to the present.

1926: The will directed trustees to build and maintain the schools, originally completed in 1887 and 1894. But when the original wooden buildings needed to be replaced, trustees were not sure whether they had the authority to demolish them and start over, or whether they could hire a Realtor to sell lands if necessary to fund the new construction. The Supreme Court decided that both were within the power of trustees.

1935: The Circuit Court has oversight on all matters relating to trust properties and trustees were advised to "seek instruction and direction from the court so as to prevent them from committing an innocent breach of trust."

Trustees were told they could not compensate lessees for losses after estate land was condemned by the federal government. The court stated that although such payments might seem fair, generous, and popular with the public, the trustees could not "indulge in this class of vicarious generosity at the expense of the trust" without explicit authority conferred by the will.

1972: Although the attorney general and the courts expressed concern over dramatic increases in commissions paid trustees, the Supreme Court ruled that these were authorized by state law and could not be reduced without legislative action. In a concurring opinion, Justice Abe criticized the practice of admitting only students of Hawaiian ancestry as inconsistent with the language of the will.

1993: Kamehameha is primarily a secular private school, is not exempt from the Civil Rights Act of 1964, and cannot restrict hiring of teachers to those of the Protestant religion, despite a provision in the will, according to the 9th U.S. Circuit Court of Appeals.

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