The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1861-03-28

been proven to the satisfaction Of the court that
the instrument conveys the last Will Of the de-
ceased. according 10 the testimony OF witnesses
These testify that Nadal wished 10 bequeath ms
property 10 the Bishop in trust for the rest and
benefit Of his soul, whereas the will a. drawn
up bequeaths it to the Bishop and his hers rs
p~ira,c ~propertp, 10 be used - such If they
choose. and that e he has, through mistake or
the misapprehcnsion Of other parties, been made
u execute such an instrument IS he never in
tended"
Resting his opinion on this point alone, with
out examining the Others, the judge decides
that the will cannot De received 10 probate. In
tine decision Of Judge Robertson, associate jus
tice Ii COMEDIES. which Of course carries =
final verdict in the ease.
With all respect for the Judges Of our >u-
prrme and Probate Courts. We cannot but ex-
press q feeling Of dissatisfaction at the result Of
the application for probate in this case. Not
that We desire any Arrangement in the exercise of
the fulle-, freedom On the part Of our judges in
their decisions. but because decisions are made
10 depend in some cases. is in that under review,
upon the casting vote Of one who Is not expected
to fully comprehend the nice distinctions often
made in the arguments Of counsel, and in qucs-
lions OF liN IalIlii- III tuF HdNH- INT Ni4iilC'h
scales. a. between the Chief Justice and the first
associate, are turned by the convenient Gf we
NAV 50 term it) and les weighty decision Of the
second associate. We do not wish OF intend to
east the slightest imputation on the legal ability
Of the second associate. Judge Ii, whose knOwl-
edge in all questions pertaining TO the ancient
customs and privileges of his cOuntrymen Is far
superior 10 that OF his associates. But in t0J-
eigu suits, requiring often the closest study and
research into the practice and decisions of courts
Of other countries. it can not be expected that he
j. possessed Of the same legal research and knowl-
edge a. his associates and consequently when
he Is called in 10 decide such cases, il i not such
u full and fair decision - can or ought 10 sat
isfy the parties interested We refer TO this
defect in our judicial system, not from any i'll
motives, bu: because ii Is Il growing cause of
complaint, which our most intelligent foreign
residents. our lawyers, and no doubt the honor
able judges themselves. see and acknowledge.
How it should he ~rcctified, we will not stop here
u suggest, but in whatever way it may be done.
the court should not, under any circumstances,
be deprived Of the knowledge of an able Hawaii
an lawyer, in examining the numerous native
cases which arise and in this respect. we ac-
knowledge no superior to the Honorable Judge Ii.
Take the case of Nadal. lie was an ignorant
foreigner, possessing ut best but Il half balanced
mind, and very childish at times. At one time,
when i'm view OF death, and filed with gratitude
to his bcnciactorS, lc ordered a Will TO be pre-
pared bequclthinS To them his estate. Subse-
quently, in Il nearer view Of death, ne resolves to
devote to the head of the church in which he
was brought up, all his property without reserve,
and .irDpl "A will q, rb1r object This will rnav
not have been in every respect Just what he
wanted, but the id,a in his mind was that his
property should be devoted to curing his soul, or
held for the benefit OF his soul. Had ne devised
his property to the Governor and his heirs to
b. held in trust for such an object, and no
other will appeared, there can be no question
but that the court would have admitted the will
to probate. Whether his religious belief was
right OF wrong, or whether lac was actuated by
superstitious notions, is not ours. nor the courts,
to decide. If such IrnS mis- iHneHf. II seems clear
that all previous instruments ought to be set
aside, and his last wiH carried out. whatever may
have been his previous purpose. Were he living.
he would uHquestionajly acknowledge the will
To the Bishop as his last r,H.
We have heard it limited that this decision
might De made a diplomatic question with the
French Government. That may be 50. but we
are far from anticipating that that government
would seek to Interfere in the administration of
our courts. because in one instance an adverse
decision has been cunstitutionally rendered.
That the construction of the court, when APP
piled TO the decision of eases like this, is faulty.
must acknowledge. but tine way to remedy it
is by legislative amendment, after the occasion
for it has demonstrated that some change
is necessary If diplomatic correspondence tends
to show the necessity of a change, let it progress,
for it can only result in the improvement of our
judicial system.