The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1873-02-12

decree OF the Probate Court TOT which due
legal notice had been made by advertisement)
was made after hearing all the evidence pre-
scented. When the appealed case was call
ed in the Circui; Court new claimant ap-
peared, who fled an affidavit that he was the
only heir-at-law. and sought to be made party
to the proceedings. Objection thereto was made
by the original parties, and the cause was contin-
ued. on the new claimant depositing sufficient
sum for costs of continuance, with the agreement
between the original parties that the question of
admitting the new claimant be heard and decided
by this Court in banco.
L. McCully for the Claimant.
f. Preston for Contestants.
OPINION OF THE COURT BY mARrwErI., J.
! If the Appellate Court have the right in these
cases to hear claimants who we're not before the
Probate Court, it is obvious that much expense
is saved to ali parties. For admitting that there
are heirs whose rights at law are not finally con-
Guided by probate decree, it would increase liti
cation to compel them to resort to suits IN Equity
or actions of ejectment, and large opportunities
of placing the property beyond the reach of
such new claimants would exist if the decree Of
distribution made in probate be affirmed on the
appeal.
The Statute allows parties to introduce new
evidence, and therefore the judgment of the APP
peIlate Court is not confined to facts or evil
dence before the lower Court. The parties,
however, may object to new claimants on the
ground of surprise; but such objection, duly sub
stantiated would furnish grounds for continuance.
The conclusiveness of probate decree after
legal notice certainly protects the executor or ad
ministrator in delivering over the property to the
parties according TO the decree, and, if not duly
appealed from, is also conclusive on parties and
privies. But it is doubtful whether the rights
Of lawful heir are barred in law or equity By
probate decree on hearing of which no personal
notice was gwen. 1t is not necessary. however.
to hold that such decree is final bar to all pro-
ceedDgs subsequently brought, but only to say
whether under our Statute of Appeals, cases of
this nature will allow new claimants to be heard
without detrment to the legal rights of the
original parties. In regard to this, it may be
remarked that the evidence OF the parties them
selves may at any time satisfy the Appellate
Court that there Is lawful heir not shown in the
Court below, and the final Judgment may be adj
verse to each of such parties. The Court are
called on to say who is the heir and if the evil
dence, or if afidavits filed with proper security
for costs and expenses of he delay, satisfy the
Court that decree can not properly be made
without the admission of a new party. it seems
no more than just and equitable that amendments
be allowed to admit him, so far as this can be
done without lessening any legal right of the
appellants or appellee. 1t is the right of party
to have two hearings of his case, one at the Pro-
bate Court, and one on appeal To admit the
new party, and remand the case to the Probate
Court for rehearing would secure TINS right, and
as it seems to us. would be the proper course in
such cases. The new claimant, whatever be the |
final judgment should pay all costs caused by his
late appearance, and no case should be remanded |
until he has deposited a sufficient sum to cover
such costs.