The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-08-25
Supreme Court July Term,
1869.
Estate of Paein,sai.

Estate Of RHeinsdi.
HARTwELL, J., delivered the opinion of the
Court, as follows:
/ This case comes up on appeal from the
ruling of one of the Justices of this Court,
declining to set aside the probate of the will
of Paeimuai. The appellant claims as only
child and heir of Paeimuai, deceased, whose
will was admitted to probate by the late
Hon. Lorrin Andrews, in 1854 By this will,
all the property of the testator was devised
! to one Haumea 1t is claimed by the appel
liant, that both the record of the probate of
proceedings, as well as the evidence adduced
by her at the different hearings upon her pc
tition to set aside the will, show that she
was an infant of tender age when the will
was offered for probate that no notice was
given to her of said probate proceedings;
and that her rights as heir are, therefore, not
affected in any manner thereby. Also, that
the evidence and record show that the will
was obtained by fraud, when the testator
was IN drtieulo morris, and too weak to I'M
derstand the nature of his acts; that the
omission to mention the name of the widow
or child in a will devising all the property to
one not related 10 the testator, and who was
living in adultery with him, is evidence
strongly to show fraud, undue influence, or
the unsound mind of the testator, and that
the failure of the record TO show that the
legal requisites of the probate of will under
the then existing laws were complied with,
is fatal to its validity.
The case was argued at great length, and
the appellants counsel urged upon the Court
all the alleged inconsistencies and discrepan-
cies in the evidence for the will, as well as
the Importance that no remissness of Courts
to see that proper notice is given, should
affect the rights of minor heirs, not notified
or represented. The doctrine of the civil
law, and the policy of countries under the
common law, as shown in their statutory
enactments to regard an omission to provide
! for, or in some manner, to refer to the imme-
date heirs of the body as invalidating the
will, was urged as the proper doctrine TO be
established by the Court here; inasmuch as
we are at liberty to adopt the doctrines of
the civil law, in the absence of statutes. The
force of this argument would be great if
urged at the time when the will was offered.
But We can not regard it as ground for set
ting aside a will duly admitted to probate.
with no appeal therefrom, or other action
taken in opposition thereto, for full thirteen
years.
1t is true that no judgment can affect or
conclude the rights of parties who received
no actual or constructive notice of the pro-
ceedings. The authorities vary upon the
question, which was not argued in this case,
how far the record should show all the legal
requisites, including notice, TO give jurisdic-
ton. But the law is everywhere held, that
the prescriptions are strongly in favor of the
entire regularity of the proceedings before
Courts, in matters properly cognizable be-
fore them, after long time has elapsed with
out any expression of dissent. This is
particularly the case where the record shows
that certain of the formalities were duly COM
piled with; pro6atiS eztretnis, l'res'nenatur
media Hart VS.. seiyas, 81 Wend., 40.1
1t appears by fair inference, in this case,
that the widow, who was the petitioners
mother, by attorney, if not in person, was
present at the probate of the will, and that
subsequently she released her right of dover
in the estate, in the consideration of 800;
we regard this as sufficient legal notice to
the infant in her ans, in the absence of evil
dence of aollusion between the devisee and
the widow. The circumstance that the widow
/ bad bafnra hnr Inns hatsdfG death hppu liViDn
as another mans paramour, tends to explain
the absence of any provision IN the will for
| the benefit of the widow and child.
The power of the Court TO set aside will
for the reasons presented in this case, should
be exercised only when the facts and evil
dence appeal forcibly and clearly to the con-
science of the Court; we are of opinion that
the appellant has not made out case for the
interpOsitiOn of that power.
Judgment affirmed.
w. c. Jones for appellant.
A. +. Judd for appellee.