CONCURRING
I agree with the statement of facts and the summary of the prior court actions taken in this case, as set forth in the majority opinion.1 I also concur in the majority opinion, except that, in my opinion, it failed to dispose of one of the important issues on this case. That issue is slightly touched upon in the portion of the majority opinion which reads as follows:
*117“ . . . Trustee action may be challenged in the usual and proper manner in the circuit courts under the strict fiduciary and other standards applicable to all trustees. All we decide here is that there is no due process infirmity in the selection process itself.”
One of the contentions urged by the appellants in their appellate brief was that inasmuch as the appointment of the successor trustee in this case bore not only the signatures of all the justices, but also bore the official seal of the supreme court and was first filed in the supreme court, that the probate judge, in being presented with such a document, would believe that the supreme court itself, and not the members thereof as individuals, had made the appointment. This coupled with the decisions of Estate of Bishop, 23 Haw. 575, aff’d, King v. Smith, 250 Fed. 145, (9th Cir. 1918) could leave the probate judge with the impression that such an appointment by the supreme court justices is non-reviewable by the circuit court in probate.
While I do not agree with appellants that the affixing of the supreme court seal to the appointment means that the appointment is “state action”, rather than a technical procedural error, nevertheless, the appellants’ argument presents an issue which should be decided. I also believe that to decide this issue of what powers the circuit court in probate has over such an appointment once received is not only necessary to this case, but that such decision will prevent uncertainty and litigation on the same point in the future.
The validity of this will, insofar as the appointment powers of the justices of the supreme court are concerned, has already been interpreted in Estate of Bishop, 23 Haw. 575, 581-2 (1917), aff'd, 250 Fed. 145, 149-50 (9th Cir. 1918), wherein it was held that such powers of appointment of trustees to fill vacancies were conferred upon the justices, as individuals, and not as a court. Where such an interpretation is made the power is not null and void or violative of law. 90 C.J.S. Trusts § 213a, In re John’s Will, 30 Ore. 494 (1896) 47 Pac. 341. Had the courts in the cases of Estate of Bishop, supra, interpreted the will as conferring such appointive powers on the justices in their official capacities such a *118provision would be null and void inasmuch as court jurisdiction cannot be conferred or changed by the provisions of a will. 90 C.J.S.Trusts §213a, Bogert, Trusts and Trustees, § 532, at 410 (2d ed.); Leman v. Sherman, 6 N.E. 872, 117 Ill. 657 (1886); Harwood v. Tracy, 24 S.W. 214; 118 Mo. 631 (1893); Petition of Straw, 102 Atl. 628; 78 N.H. 506 (1917); Estate of Carter, 24 Haw. 536 (1918). Insofar as these decisions, although they were made fifty-three years ago, conclude that the supreme court justices, as individuals (and not as a court) have the power to select, nominate and appoint the successor trustees of Mrs. Bishop’s estate, as was her expressed intention,2 I concur. Of course, the individual justices may decide as individuals not to exercise such powers, or the supreme court by rule, or the legislature by statute, may terminate such procedure, but as the law now stands I see no impediment to such an appointing process by the justices as individuals. The problem arises, however, from the following portions of the decisions in Estate of Bishop, supra, and King v. Smith, supra, which seem to say that the supreme court justices’ appointment, even though made as individuals, may not be subject to review by the circuit court judge in probate.
Thus in King v. Smith, 250 Fed. at 149, we find the following:
“Further, the power of appointment, when exercised, is final. The vacancy or vacancies, whatever they may be, are filled by the act. The process of appointment ends there, and no court has authority, except for just cause for removal, to disturb the appointment; that is to say, no court has authority or power to review or supervise the appointment made by the justices.”
And in Estate of Bishop, 23 Haw. 575 at 583, the court stated:
“ . . . The will does not provide that the choice or appointment made by the justices of this court should be *119subject to the approval or consent of any other officer or tribunal. The power of approval implies the power or right of disapproval — the power of vetoing the act of the justices of this court in exercising the power of appointment — and such veto power, if exercised as attempted by the learned circuit judge, would necessarily result in defeating the intent of the testatrix as expressed in the provisions of her will under consideration. The only proper petition to the circuit judge would be one asking that he name the amount of the bond to be given by the appointee and approve the same when given.”
If, and insofar as, these decisions infringe upon any statutory law3 or, if, and insofar as, these decisions purport to give an appointment made by a majority of the individual supreme court justices any greater status than other valid appointments made by other responsible individuals who are specifically empowered to make such appointments by the terms of the trust instrument, they should, in my opinion, no longer be followed. It is not clear whether it was even the intent of these decisions to so hold, but, in view of the quoted language from these decisions I think we should modify such decisions to make it clear that, in case of such an appointment of a trustee by a majority of the supreme court justices as individuals, or by any other person empowered by the terms of a trust instrument to appoint successor trustees, while the circuit judge must ordinarily accept an appointment if the appointee is qualified, willing and able to serve as trustee, II Scott on Trusts, 3d ed. § 108.2 at 858; IV Scott on Trusts, 3d ed. § 388 at 2996-7; Glader v. Schwinge, 336 Ill. 551, 168 N.E. 658; 66 A.L.R. 172 (1929); Hartman v. Orr, 35 Ohio Abs. 528 41 N.E.2d 406 (1941); Raffety v. Parker, 241 F.2d 594 (8th Cir 1957); In re Sotnikoff, 34 N.J. Super. 422, 112 A.2d 754 (1955); 54 Am.Jur., Trusts, § 133 at 113; Estate of Farrington, 42 Haw. 640, nevertheless, such circuit judge is *120in my opinion, empowered by law to review every such appointment for determination of at least the following:
1. To determine whether the appointment was made in accordance with the terms of the trust document; II Scott on Trusts, 2d ed. § 108.3; § 637-2(2), H.R.S.;
2. In cases where the qualifications of the trustee are set forth in the trust instrument, to determine if the appointee meets those qualifications; II Scott on Trusts, 3d ed., § 108.3; § 637-2(2), H.R.S.;
3. To determine the issue, where raised, of the mental competency or any incapacity of an appointee; II Scott on Trusts, 3d ed. § 108.3; Bowditch v. Banuelos, 1 Gray 220 (Mass. 1854).
4. To determine the amount of bond, if any is required, to be given by the appointee; § 607-21, H.R.S.
5. To make certain orders regarding the appointee’s service as trustee so as to cause conflict of interests, if any, to be resolved as a condition to continued service as trustee; Bogert Trusts and Trustees, § 532; and
6. To determine any allegation that any such appointment violates a provision of the Constitution or the terms of a statute.
To the extent, if any, that Estate of Bishop, supra, holds to the contrary, it should no longer be the law, and I would so hold. From a reading of the pleadings, including the proposed amended complaint, I do not regard any of the above six items as having been raised as an issue in this case, except for item number six which was decided in this case, so I find no reversible error in the Circuit court’s following of that decision in this case.
(a) It should be added that tile purpose of the trust is to erect and maintain in Hawaii one school for boys and one for girls, and further that a portion of the income of the trust would be used for tile support and education of orphans and other indigents, preference to be given to Hawaiians of pure or part aboriginal blood.
(b) An additional former plaintiff, an association known as The Hawaiians, withdrew from this appeal and appealed to the U. S. Supreme Court, which petition was dismissed by that court in a per curiam decision on December 14, 1971. Pae Galdeira and the Hawaiians v. Richardson, et al, 404 U.S. 993, reh. den. 405 U.S. 948.
Courts, judges and justices are most reluctant to set aside, or hold non-effective, the provisions of a person’s last will and testament, especially where made with the kind, loving and generous motives with which this one was obviously made. (See 5 Page on Wills, § 41.7, at 185-7).
See §§ 637-2, H.R.S., subsection (2), giving circuit judges the power to hear and determine suits for the enforcement or regulation of trusts; § 554-1, H.R.S., giving the circuit judges, in cases of the valid appointment or succession of any trustee to fill a vacancy in any trusteeship, power to make a vesting order vesting legal title to the trust property “in the trustee so appointed”.