Polynesian., 1863-03-21
Ghe 4olnnesian.


SUPREME COURT.-In Probate. On Appeal.
In the matter of the ucH of JOHN ELY, Of Kahua. HO
The judgment of the Court was delivered by Justice
ROBERTSON, follows:
This comes before the full Court appeal from
the judgment of Justice Robertson at Chambers, ad
mittng the will propounded to probate.
| The will presented made the 10Th day of
October 1858 three years previous to the death OF the
testator, which took place under melancholy circum-
stances in the month of November, 1861
After careful consideration of the evidence laid before
u.s. satisfied that the will duly executed by
Mr.. Ely, at time when he was of sound mind and dis
posing memory and that he declared it, or sign6ed it
to be his WILL in the presence of the subscribing wit
nesses and deem it unnecessary to review the OBJ
ectons raised by Counsel for the contestant touching
| these points.
But on behalf of the contestant who is the only sur
viving child and heir at law of Mr.. Ely, further
ground Of objection to the validity of the will has been
raised namely That il is in proof that the tesator
who was an illiterate man, incapable of reading
the will himself, it is incumbent the proponent to
prove that the will read to him by other
person before the Court can be judciay satisfied that
the tesator fully understood the contents of the nstru
ment and that this precauton rendered more than
usually Imperative, in this from the fact that the
proponent, who is beneficiary to comparatively large
amount under the will, wrote the instrument himself
Indeed, has been argued by Counsel that the pecu
liar of the will and the circumstances under
which it was prepared and executed show that the pro-
ponent abused the estators confidence, with view to
| his own aggrandzement.
The document offered for probate reads as follows:
the name of God Amen l. Ely, Kahua in the
District of Ho Island of Hawaii Hawaiian Islands, being of
sound mind and memory do make publish and declare this
last will and testament, IN manner following that
say r;r u;,0 ~, h.ou.,,b 70 INV ,.i. ,,0 Tho
five hundred dollars also give and devise her all that
real belonging and known Kaua, together
with all the heredaments and appurenances hereunto be-
@ rp IN any sr az @ 10 Oe snd am s6 @
ler my
Daniel Ety. his heiIs and forever And addi
to to the above give and bequeat my wife, Napu all the
furniture the house upon said land
deceasr together with horse and four head of
Seeond-I give and bequeath to my son. Daniel Ely, the
five hundred dollars together with all
de moneys due from Hawaiian natives and all
due me frUm John NOmOre, and William Burk and John
Avery Simmons also give and devise said Daniel
Ety. aforesaid his heirs and assigns all that parcel
land situate Kulamanu, in the District of HiO, belonging
together with all the heredaments and appurenances
Daniel Ely his assigns
Ihird-I and bequeath niece, Miss Mary
of North Wales Great Brtan) and her sister (name TO me
unknownl, the sum of two thousand dollars each
of Phonua Ho, Hawaii the of thousand dol
lars And laI give and bequeath all the residue and
remainder personal estate of what kind
ever CATER paying the several egaces and all funeral
pense, debts, dues and demands against me Benjamin
Pman of Piihouua Ho Hawaii, whom hereby appoint my
Executor of this last will and testament hereby revokng
all former wills by me made.
all witness Whereof heeunto my hand seal,
this the twentieth day of October in the Lord
thousand eight hundred and fifty eight u. S. ELY'
The foregoing the date thereof declared
by John Ety. the tetatOr therein mentioned his
last will and testament; and he the time acknOw
edged u.s. signed sealed the
and heeuPon At his request and in his presence
and in the presence of each other signed
atesting Witnesses GEORGE E. TUCKER.
DoN JOSEF sAIvIc.
As general rule the will of person sui juris which is
proved have been executed AMI aested with sufficient
fOrmay meet the requirements of the law and have
been made time when the testaOr agent
possessed OF sufficient mental capacity to make valid dsPO
stOn of his property, will be admitted TO probate
of course The pOponent having made proof the sasac
extent done all that can be re-
qured of him. unless the party enabled point
to some peculiar or unusual circumstances in the which
render for the Court seek for further proof
the estaor knew and understood the contents of the WILL and
intended dispose of his property in the the
on behaof the contestant in the present case il is said
there facts here which call for the exercise
dnary vigilance the part of the Court and which
be held to constitute themselves conclusive objection TO
the will being pronounced valid unless satisfactorily
Eirtt appears that the estator, who Welsh
by birth unable read the will HIMSELF and
expressly have been read him secondly
who s'also the named in the WILL
beneiciay to considerable amount This wofod obiec-
ton will be conveniently examined by reversing the
der in which has been stated because it should
that the large beque the propOnent consequence
of anything having the appearance of undue influence of
cusance would enhance the oce OF the hrst part OF the OBJ
econ but the contrary should appear clear the etma
on OF the Court then the first branch of the objection would
be entitled TO comparatively little weight.
So far gather from the testimony, Mr.. Ely by
and possessed although lterate of sufficient degree
OF business intelligence to have acquired and preserved
to take care Of he not at all person likely be easily
cOaxef frightened into making involuntary disposition
of his worldly goods. short previous the
the document before the Court he had been ill.,
and Dr. Saivc, Austrian physician for attend
him. Fearing apparently that ght terminate ia
tally, he dispatched his Daniel village of Ho
tance of ten miles, with for Mr.. Ptman
him. but without stating tor what purpose The roads
in bad condition, and delay of days occurred, Mr..
Piman had TO go Kahua by When he arrived
Saivc the tesator gaining strenghhe good
aea better amer ne private interview win MI Ely Mr. Pit
man enqured OF the physician the tesator was in his
opinion h condition his WILL to which the Doc
tor replied in the affirmative Mr. Pman thea said that Mr..
Ely desired every one except himself to leave the rooH as
he about to make his WILL In about afterwards,
be witness the will, and also Messrs.
and Waller for the purpose. When the witnesses
there small table with pens and ink upon it, Mr. Pitman
took up from the table The WILL which had just been written
been for Mr. EIys will Mr. Ely said, ayes, yes,
my will in his usual quick way Mr. PItman then accord
ing TO the recollection of the witnesses Tucker and Waller
said would read the will il Mr. Ely desired but he said,
''No, nos Mr.. said the witnesses
necessary will-hey
could the signature of testato would
He then read over the certificate of attesaton and the will
signed by Mr. Ely and by the four witnesses in his pres
Dr. Savic teshes that Mr. Ely sgmfed his assent
the will, when Mr.. Ptman aestation,
but that Mr. Ptman did offer read the will ITSELF The
teatos wife, and his son. the contestant, were in about
These then, the under which
executed and where be asked is the evidence Of
undue OF OF suspicious condue on the part o the
prOponen The ORus the contestant show it, affirm
taors intentions respecting his property Of variation
from instructions The proponen did when he heard Of
Mr. Ely's Sickness rush 10 his bedside and im him
leave him his property This the mentally weak
man overcome by sgPersous fears by the coercion of
controlling mind The prOponent did carry with him
will ready prepared TO impose the siek for il does
that he aware until he reached Kahua
the testaor desired TO his will IL is in argue
that because the will bequeahs larger Of property
the testator's intimate friend MI Ptman than his
Daniel that therefore undue influence have used,
unless the court must that however respec
table his character will abuse the confidence friend who
relies upon him, whenever the opportunity offered. That
tesator should prefer others his children
thing II Is only circumstance, which requires
The court to look narrowly 10 the evidence To quote the Ian
OF Mr. Surrogate Bradford of New York. the
Weir Fitzgerald q Braford's Rep p 67 Kind Offices
and shln services in ordinary tend influence the
mind IN favor OF the thus and should be
taken not to conound the natural action OF feel
ngs IN this respect with positive dctanR and
over the mind OF the estaors f5e application of this
language Is emphaticay just in tke present case
But there proof the will was read TO the