
    IN THE MATTER OF THE APPOINTMENT OF A GUARDIAN OF THE PROPERTY OF ICHIRO OKAMURA, A MINOR.
    No. 1306.
    Reserved Questions from Circuit Judge Fourth Circuit. Hon. C. K. Quinn, Judge.
    Submitted January 4, 1922.
    Decided January 19, 1922.
    Coke, C. J., Kemp and Edings, JJ.
    Guardian and Ward—cancellation of appointment.
    
    Tbe mere fact that a guardian may be in a position to commit an illegal act is not sufficient to warrant the cancellation of his letters of guardianship although if he does commit the act it may be cause for his removal.
   OPINION OF THE COURT BY

EDINGS, J.

The facts in tbis case as appear by tbe stipulation filed herein are as follows: The said Ichiro Okamura was born in tbe district of North Hilo, County and Territory of Hawaii, on. January 28, 1916; that be is tbe son of Juicbi Okamura, a resident of said district; that tbe said Juichi Okamura is a subject of tbe Emperor of Japan and incapable of naturalization as a citizen of tbe United States; that said minor is tbe owner of a certain tract of homestead land situated at Papaaloa in tbe County and Territory of Hawaii, tbe same being lots Nos. 15, 88 and 89 of the Manowaiopae homestead tract containing an area of 37.775 acres according to tbe special homestead agreement No. 1071, Land Patent 6951 to James D. Fraser, tbe said special homestead agreement No. 1071 having been issued to tbe said James D. Fraser on tbe 20th day of December, 1914, and the said patent having. been executed and delivered to him on tbe 24th day of November, 1917. Tbe said special homestead agreement and tbe said patent were issued to tbe said James D. Fraser subject to tbe provisions of an’ act of Congress entitled “An Act to Provide a Government for tbe Territory of Hawaii,” approved April 30, 1900, and usually referred to as tbe “Organic Act,” which prohibits tbe transfer of any interest in or control of tbe land described herein to any alien without tbe consent of tbe land commissioner and tbe governor of tbe Territory of Hawaii. On or about tbe 26th day of August, 1919, tbe said James D. Fraser conveyed and transferred tbe said land in said special homestead agreement and said patent described to tbe said Ichiro Okamura. On or about tbe 26th day of January, 1920, Juicbi Okamura, tbe father of said minor, was by tbe judge of tbe circuit court of tbe fourth circuit of tbe Territory appointed guardian of tbe property of tbe said Ichiro Okamura. At tbe time of tbe appointment of said guardian tbe said judge of tbe circuit court of tbe fourth circuit was not duly advised of tbe fact that the estate of tbe said minor consisted largely of tbe homestead land in question and was not advised that tlie question of the legality of said appointment might be in doubt by reason of the said provisions of the Organic Act prohibiting the transfer of any interest in or control of homestead lands to any alien without the consent of the land commissioner and governor as aforesaid. The entire estate and property of the said minor consist of the land in question and the profits derived from agricultural operations conducted on said land. The land commissioner and the governor did not consent to the transfer of the said land to the said Ichiro Okamura and did not consent to the appointment of the said Jnichi Okamura as guardian of the said property of the said minor.

Upon this statement of facts the attorney general of the Territory of Hawaii filed a petition on behalf of and as the next friend of Ichiro Okamura in the said circuit court of the fourth circuit praying that the letters of guardianship issued to said Juichi Okamura be canceled and a proper and legally competent person be appointed in his stead and the following questions were reserved to this court:

“Did the said Juichi Okamura, by his said appointment as guardian of the property of said Ichiro Oka-mura, a minor, acquire such an interest in or control of the lands described in the petition herein as to render said appointment illegal and (or) void as being in contravention of the provisions of the Organic Act of the Territory of Hawaii?”
“If answered in the affirmative should the letters of guardianship heretofore issued to Jnichi Oka-mura be canceled * * ⅜ as prayed?”

Section 73 of the Organic Act is in part as follows:

“No land for which any such certificate, lease, or agreement shall hereafter be issued, or any part thereof or interest therein or control thereof shall, without the written consent of the commissioner and governor, thereafter, whether before or after a homestead lease or patent has been issued thereon, be or be contracted to be in any Avay, directly or indirectly, by process of law or otherwise, conveyed, mortgaged, leased, or otherwise transferred to or acquired or held by or for the benefit of any alien or corporation; or, beforé or after the issuance of a homestead lease or before the issuance of a patent, to or by or for the benefit of any other person; or, after the issuance of a patent to or by or for the benefit of any person who owns, bolds, or controls, directly or indirectly, other land or the use thereof the combined area of which and the land in question exceeds eighty acres: Provided, That these prohibitions shall not apply to transfers or acquisitions by inheritance or between tenants in common.”

A careful review of the record in this case fails to impress this court with the necessity or practicability of answering the first question reserved either in the negative or affirmative. This question appears to us to be purely academic and based principally upon the apprehension of the petitioner that the guardian may use bis position as such to enable him to perpetrate an illegal act.

This of course does not and cannot affect the legality of the appointment of the guardian. That appointment is upon its face legal and valid and the subsequent acts of the guardian, while they may furnish cause for bis removal, cannot affect the validity of bis appointment.

The second question reserved is, namely, “Should the letters of guardianship heretofore issued to Juicbi Oka-mura be canceled?” Under the provisions of section 73 of the Organic Act, upon which the petitioner relies, the guardian, if his interest in or control of the lands in question, comes within the prohibitions therein enumerated, has the right to apply to the commissioner and the governor for their written consent to his control of the land and he should be permitted to avail himself of the privilege accorded him by the act.

Harry Irwin, Attorney General and as next friend, for the minor.

Russell & Patterson for respondent.

This question is therefore answered in the negative.  