CONCURRING AND DISSENTING OPINION OF
ABE, J.I concur with the decision of the majority of this court on all of the issues decided, except on its holding that the Bishop-Post agreement is invalid. On this issue I respectfully dissent.
This court says that “[tjhe record in the case does not show that the majority trustees executed the Bishop-Post agreement upon a determination that the sale mentioned therein was necessary for the capital or operational requirements of the Kamehameha Schools or was for the best interest of the estate otherwise than as a means to free the estate from the original agreement” and intimates that the agreement was entered into because the majority trustees determined that “the Bishop-Post agreement and the KDC-Post agreement, taken together, were ‘so much better’ than the original agreement, which was deemed by them to be binding on the estate.”
It should be noted, however, that this court fails *340to explain why the trustees had entered into the original agreement with Post on July 1, 1968.
Under the will of Bernice Pauahi Bishop, the trustees have wide discretion1 to sell and convey real property, which comprises a substantial portion of the trust corpus. In Hyde v. Smith, 11 Haw. 535, 538 (1898), this court held that under the will the trustees could dispose of land “whenever it appears to them expedient and for the best interest of the estate; and they are under no obligation to apply to a court of equity so to do; and that a court of equity shall not intervene unless it is made to appear that the trustees are abusing the discretionary powers vested in them.”
This is sound law2 and I believe this court has no intention of overruling Hyde v. Smith.
I also believe that the record of this case clearly shows that the trustees have been plagued by the necessity of generating additional income for the maintenance of the Kamehameha Schools, and this factor compelled the trustees to undertake the Keauhou development. Also, Judge *341Fukushima, concerned about the Keauhou project necessitating outlay of capital expenditure, which in turn may deprive the Kamehameha Schools of much needed funds to properly maintain the schools, made this finding:
{T}he financial situation of the Estate and of the schools, including the cash deficit now faced, was far more serious at the end of 1969 than at the beginning of 1968 when the Attorney General properly and wisely called a halt to continued transmutations in the development and financing schemes.
It should be noted that the trustees had petitioned the trial court for a bill of instructions and the judgment was entered on November 19, 1965. Judge Fukushima also found that under this judgment the trustees were:
. . . authorized to form a development corporation, to convey the project lands to that corporation, to take stock and securities of the corporation for the current value of the land and to cause the corporation to develop, subdivide, sell and lease the lands in connection with the development. The Trustees were expressly prohibited from mortgaging or pledging assets of the Estate to secure any indebtedness of the corporation and were admonished to retain control of the corporation, meaning control of the development as well. Testimony in this case makes it clear that the increase in value to be added to the adjacent lands immediately mauka of the project lands was an element of substantial importance in the Trustees’ decision to go forward with this development. In the Judgment, this Court also stated that the proposed plan was in conformity with the true intent of the Princess’ Will and, to the extent it might constitute a deviation therefrom, authorized the consummation of the plan.
Further, Judge Fukushima found that pursuant to the judgment of November 19,1965:
*342The Trustees have, indeed, formed the development corporation and have caused it to engage in the development and leasing of lands in the project. However, instead of causing it to be an independent developer with title to the lands, having its own substantial capitalization and sources of credit, which would assure insulation of the assets of the Estate from loss encountered in the project and also assure tax treatment which would not adversely affect the Estate as a whole, the Trustees have treated Kamehameha Development Corporation as an agency or division of the Estate, or as an alter ego, in the development. Kamehameha Development Corporation has never been made independent of the Trustees of the Estate, financially or otherwise. Not only have the majority Trustees failed to develop and implement any plan for financing the development from sources outside of the Bishop Estate, they have, to the contrary, committed the Estate to investing some $10i^ million in capital in this project. That cash investment will be over and above the Estate’s contribution of the project lands, which incidentally, have not yet been conveyed to Kamehameha Development Corporation. The current value of that land has not been ascertained nor has the land even been identified, although presumably it will be some or all of the project land lying makai of Alii Drive. The operating and capital requirements of the project have become inextricably intermingled with the operating and capital requirements of the Estate and the Kamehameha Schools. To fund all those requirements and to make up the cash deficits which are forecast, the Trustees now plan to sell some $19 million worth of Estate lands.
In my opinion the portions of the record referred to above show that the trustees recognized that the Estate was faced with a financial crisis and they decided it was necessary to sell a portion of the land belonging to the *343Estate to relieve the Estate from the financial bind. It is crystal clear to me that the trustees made their decision to sell Post an undivided interest in the mauka area owned by the Estate under the original agreement to generate needed funds to maintain the Kamehameha Schools, and/or for the best interest of the Estate. Thus, I believe that the record disproves the reason or ground upon which this court is basing its decision and therefore that it is an incorrect decision.
Probably I should end my dissent here; however, I am constrained to discuss another issue for the reason that this court, after acknowledging that though its ruling on the issue “with regard to the appraisals of Won and Child” to be dictum, chose to discuss the matter.
On this issue, this court acknowledges the professional competence of Won and Child as appraisers. However, it faults their appraisals on the ground that they were requested and they did make the appraisals of both “the mauka area and the makai area as of July 1, 1968, under certain assumptions, one of which was that the two areas be deemed to be under a single ownership.” On July 1, 1968, both mauka and makai areas were owned by the Estate and the appraisals were based on factual basis and I cannot see how such appraisals can be faulted by this court.
Also, this court finds fault on the part of the trustees in that when the Bishop-Post agreement, which agreement is in issue here, was entered into on December 29, 1969, the sales price of the land to Post was determined on the appraisals of Child and Won as of July 1, 1968. The appraisals were the basis upon which Bishop and Post originally entered into an agreement3 on July 1, *3441968. This original agreement was twice amended by the parties, by Implementation Draft No. 2 dated August 20, 1968, and Implementation Draft No. 3 dated December 19, 1968.
The record shows that in accordance with the terms of Implementation Draft No. 3, on December 30, 1968, Post paid $780,000 as prepaid interest and offered to pay $1,250,000 as down payment for the mauka area upon delivery of a limited warranty deed.
The trustees, instead of performing under Draft No. 3, entered into renegotiation with Post. The trustees probably took the step to renegotiate because they thought that the agreement would not be binding upon the Estate; that they would be able to get a better bargain for the Estate under a new agreement; that, as this court holds, by Implementation Draft No. 3, they had “severely curtailed the liquid financial resources available for the use of the Kamehameha Schools”; or that by the agreement they had made the Estate a joint developer and thereby subjected the Estate to payment of taxes.
Now, with these problems facing them, the trustees, in their exercise of prudent judgment, entered into the Bishop-Post agreement and KDC-Post agreement to alleviate the problems. In reaching this decision, it is clear to me that at that point the trustees again made a “determination that an agreement is better than the agreement previously executed, with no binding force on the estate and as to which the majority trustees entertained enough reservation to form a desire not to go through with it, is not a determination that the sale mentioned therein is for the best interest of the estate.” (Emphasis added.)
Also, I do not agree with the statement of this court that the previously executed agreement had no binding effect. The binding effect of Implementation Draft No. 3 may have been questionable; however, the trustees *345chose not to have the matter litigated, probably to save costs and expenses to the Estate, and entered into the Bishop-Post and KDC-Post agreements. In doing so, the parties purposely avoided litigation of the question and the issue was not before the trial court and is not now before this court. Under the record, this court is in no position to hold that the previous agreement was not binding on the Estate.
This court holds that the trustees abused their discretion when they determined the sales price of the mauka land based on appraisals made by Won and Child as of July 1, 1968; and that the price should have been based on appraisals updated to the date of the Bishop-Post agreement. It should be noted here that the original agreement dated July 1, 1968, and as amended by Implementation Draft No. 3, was being cancelled and replaced by the Bishop-Post agreement. The latter agreement was to be effective as of July 1, 1968, the date of the original agreement. In fact, July 1, 1968 was the effective date of all of the agreements which amended the original. This would necessarily be so inasmuch as the parties to the agreements intended the later amendments or agreements to amend or replace the original agreement and to be effective as of the original date — July 1, 1968. Under the circumstances, it was proper to have the sales price determined or appraised as of that date.
This court concedes that the trustees of the Bishop Estate “are vested with a discretion to act in regard to the sale and disposal of land . . . and ... a court of equity should not intervene unless it is made to appear that the trustees are abusing the discretionary powers vested in them.” Hyde v. Smith, 11 Haw. 535, 538 (1898).
In determining questions of trustees’ discretion regarding the disposal or investment of trust assets, this court has in the past used as a criterion the “prudent investor rule” and said:
*346“In acquiring, retaining, exchanging, selling, investing, reinvesting and managing property of another, including investments for account of their trusts by trust companies acting as trustees or guardians, a trust company shall exercise the judgment and care which, under the circumstances then prevailing, men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds and property considering both probable income and probable safety of capital.” (Emphasis added.) Dowsett v. Hawaiian Trust Co., 47 Haw. 577, 583, 393 P.2d 89, 94 (1964).
Also, the rule of this court is that where a trustee has sold land under the power of sale, “the court will not interfere unless the trustee in exercising or failing to exercise the power acts dishonestly, or with an improper even though not a dishonest motive, or fails to use his judgment, or acts beyond the bounds of a reasonable judgment. The mere fact that if the discretion had been conferred upon the court, the court would have exercised the power differently, is not a sufficient reason for interfering with the exercise of the power by the trustee.” Estate of James Campbell, 42 Haw. 586, 604 (1958).
However, after a careful analysis of this court’s decision and its criticism of the trustees’ actions, I fail to see where this court has shown in any way that the trustees had abused their discretionary power of sale under the will. At the most, this court is saying that if it were the trustees, it would not have executed the Bishop-Post agreement. In other words, it is substituting its judgment for the trustees’ judgment. This court’s decision, I believe, overrules Estate of James Campbell quoted above.
The decision of this court, in my opinion, would nullify the very purpose or objective of the testatrix in granting the trustees broad power of sale, as the decision *347of this court reverses an honest determination of the sales price made by the trustees in their exercise of the power of sale. The result of this decision would compel trustees not to sell property of estates under the power of sale, but to petition the court in the first instance for license to sell, which would frustrate purchasers and bring about delay and larger expenses, the result of which may reduce the marketability and price of land held by trustees.
As has been noted, the trustees had petitioned the court for a bill of instructions to permit them to form a development corporation, as they had doubts as to their authority to do so under the terms of the will, and the judgment of November 19, 1965 authorized the formation of the corporation. It is correct that the sale of land was not authorized by the trial court’s judgment. However, the sale of land was not and should not be deemed in violation of that judgment. Under the power of sale contained in the will, the trustees had wide discretion to sell land belonging to the Estate and they agreed to sell the land to Post by virtue and pursuant to such power and not presumably under the judgment.
I believe that the decision of this court declaring the Bishop-Post agreement invalid deprives Post of his rights and interests under the agreement without due process of law. He was not made a party to the proceeding and this court holds that he was not a necessary party for the court to render the decision declaring the Bishop-Post agreement invalid. In support of this holding this court cites National Licorice Co. v. National Labor Relations Board, 309 U.S. 350 (1940). The U.S. Supreme Court has held that NLRB properly enjoined an employer from enforcing contracts entered into with its employees in violation of the National Labor Relations Act, though the employees were not parties to the proceeding. This court says that “(ijn affirming the order of the board, the United States Supreme Court stated that the order did ‘not go beyond those in suits brought by the United *348States to restrain violations of the Sherman Act, where the injunction was broad enough to prevent the offender from carrying out contracts with persons not parties to the suits,’ and also stated that ‘in proceedings before the Federal Trade Commission, the order restraining unfair methods of competition may preclude the performance of outstanding contracts by the offender.’ (309 U.S. 365, 366).”
Also this court says that “{i}n the advisory committee notes to the 1966 amendment of Rule 19 of the Federal Rules of Civil Procedure, it is stated:
‘Even if the court is mistaken in its decision to proceed in the absence of an interested person, it does not by that token deprive itself of the power to adjudicate as between the parties already before it through proper service of process. * * * It is true that an adjudication between the parties before the court may on occasion adversely affect the absent person as a practical matter, or leave a party exposed to a later inconsistent recovery by the absent person. These are factors which should be considered in deciding whether the action should proceed, or should rather be dismissed; but they do not themselves negate the court’s power to adjudicate as between the parties who have been joined.’ 3A Moore’s Federal Practice, 2d ed.,§ 19.01 [5.-11] (1967).”
The trial court held and now this court is holding that the Bishop-Post agreement is invalid, and thereby wiping out Post’s rights and interests under the agreement. On the other hand, if the decision of the court merely enjoined the trustees from carrying out the terms of the agreement, National Licorice Co. v. NLRB and the quotation from Moore’s may be applicable here; however, the decision invalidates the agreement, and I believe the authorities cited by this court are inapposite.
Inasmuch as the decision of this court deprives Post *349of his rights and interests, he was a necessary party to the proceeding; and therefore he is deprived of his day in court in violation of the due process clause of the United States and Hawaii State Constitutions. Thus, I would enter a most strenuous dissent on this point.
The 17th paragraph of the first codicil of the will provides:
17th. I give unto the trustees named in my will the most ample power to sell and dispose of any lands or other portion of my estate, and to exchange lands and otherwise dispose of the same; and to purchase land, and to take leases of land whenever they think it expedient, and generally to make such investments as they consider best; but I direct that my said trustees shall not purchase land for said schools if any lands come into their possession under my will which in their opinion may be suitable for such purpose; and I further direct that my said trustees shall not sell any real estate, cattle ranches, or other property, but to continue and manage the same, unless in their opinion a sale may be necessary for the establishment or maintenance of said schools, or for the best interest of my estate. I further direct that neither my executors, nor trustees shall have any control or disposition of any'of my personal property, it being my will that my husband, Charles R. Bishop, shall have absolutely all of my personal property of every description. And I give unto my executors named in my said will full power to sell any portion of my real estate for the purpose of paying debts or legacies without obtaining leave of Court; and to give good and valid deeds for the same, the purchasers under which are not to be responsible for the application of the purchase money.
See Estate of James Campbell, 42 Haw. 586, 603 (1958); Dowsett v. Hawaiian Trust Co., 47 Haw. 577, 581, 393 P.2d 89 (1964); Richards v. Midkiff, 48 Haw. 32, 60, 396 P.2d 49 (1964); see also 2 Scott on Trusts, 2d ed., sec. 187.
This agreement provided for the organization of a joint venture between Post and Kamehameha Development Corporation, owned solely by the Estate. Post, under the agreement, was required to contribute $2,500,000 in cash and in addition contribute undivided interest in land to be purchased from the Estate valued at $2,500,000.