The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1874-03-14
The Contested VIII Of Lunalilo.

. AIaE Aa tHE faA AAh "a HANts 1871 ana Tue tNAtAAA
On me Slst day Of January. 1874 Is IS coatended
On tlr part o. the father 81 the deceased, that the
original instrument j. not the viii Of The deceased,
because az the tune of the alleged signing q the
said instrument ihe decreased was Incompetent To
make "a Mil. The Instrument Is duly signed by
the tcstator. and atlCsied bv two witnesses. \.
Francis JuJd and John IL. Paty-a more complete
way than l. prescribed by statute, aud lu the intm
used by careful professional men, Both these
witnesses testify that the deceased az ihr time 81
signing was oi perfectly sound mind. bU; it Is
objected that be- was under guardianship by q
decree 81 this Court on "a petition ai hl> father.
Charles kanaiua. dated February 18Th. lsls, The
decree having been made 10 conformity with The
petition on the 2Uth Of tLc same month. aud duly
recorded in jbe Register Ofhce on The 2tih. as
prescribed 10y the lS54th Section OF the Civil Code,
which reads as follows:
SEcrIoS 1854 After abe order 81 uoUos has been issued,
order Of notice. 10 be filed IN the Office ct tie registrar ct con-
application. all contracts, excepting for ncrs-arte-, and an
sGs, sales OF transfers q real or personal estate, made ey
registry Of coaveyanccs, and before the termination q abe
guardianship, shall be nan and void.
The petition OF Mr.. Kanaina sets forth his rra-
sons for making The application. ns follows
tTEANSL ATOM
&c These are my reasons for asking You TO appoint
guardians 10 have charge OF all his property. II
will be expended in his maintenance, FOR he takes
no care of his property, squandering IL in drinking
and other vices he Is at present considerably
involved in debt for that which does not benefit
him and if guardians are not soon appointed, his
property will be speedily gone
On the aforementioned 20th of February, de
ceased was present in Court, and waived the notice
required by law and consented to be pat under
guardianship. so It is apparent that he was not
an insane man, or in any way Hoa coIHpoS n%aeEfjS.
but was put under guardianship As an Incorporate
man and spendthrift. and by his own consent. But
it is objected that by Section 1854 above quoted.
all gifts, sales or transfers OF real or personal
estate are null and void. But this is not a gift.
sale or transfer within the meaning OF that statute.
\ gilt within the purview of that statute Is when
the thing TO be given passes directly and may be
recovered by the guardian. But the gilt by will
only takes place after the death, when certainly the
guardians rights and duties As regards the ward
have terminated. There were no improper infu-
ences used TO induce him to make the will-no
advantages taken of his peculiar weakness no
paudering thereto-but entirely the contrary. The
persons who were witnesses to the instrument had
no interest in ii at all. lie had been several days
in giving bis instructions. talking it over and hav-
ing the instrument prepared, II was sent to him
not carried-on the 9th OF June. lie brought it
back alone on the 7ta, the day OF its execution. |
and as both witnesses say was perfectly sober and
appreciative of the act took much interest in it,
and as Mr.. Judd who drafted the instrument says,
emphatically, speaking as a professional man. (and
therefore as an adept in such matters) was perfectly
of sound and dispOsing mind and memory. Under
these circumstances. his being under guardianship /
did not disenable him from making a will did not
take from him the testamentary power--the power
of directing TO whom his estate should go after his
death.
But again. He was discharged from his guard
ianship on the 3lst of December, 1872. On the
Sth of January following he was elected King.
Surely this will rebut any presumption of his inca
pacity to make a will, even if such presumption eX-
listed before. And on the 2lst of January, 1874, he
read the instrument approximately and deliber-
ately. (having sent for the paper To the gentleman
with whom he had deposited IT'D and said that he
wanted TO make a codicil. and III reading II over,
called attention to n clerical error in the instrlI-
ment and desired that it should be corrected, but
was satisfied with the explanation that it was of no
consequence. This would be n sufficient recogni-
ton and republication of this instrument as his
will. Surely there was no failure OF memory-no
abatement of mental faculties.
At the time Of the execution Of the cOdicil, was
he of sound and disposing mind and memory
Unquestionably he was. The wandering Of mind
which is testified to, was merely the little confusion
of a sick man. whose medical attendants are obliged
to administer heavy doses Of opiates- on waking from
sleep. in Il doZe. He had a lively appreciation of
this matter which he had in hand sent for Mr..
10 make a cOdicil-nOt a Will showing Il ieinem-
brance Of the will and an appreciation OF the man
ner in which it was to be $50 to speak, amended
gave directions as TO the further dlsposlIoh OIL ms
apparently with care the three articles that had !
been prepared, as Mr.. Judd thought in obedience
to his instructions, and substituted another name
for the one mentioned in the second item, assigning
an intelligent reason Tor so doing directed a copy
to be made as amended but still more, he eX-
pressed himself about some articles of silver plate,
as DESTROYS to think more about it; and said that
he was too tired to sign and on being told that
another might sign for him, answered that if he
found himself unable to sign on the morrow, be
would resort to the mode suggested. Surely, no
better testimony could be given OF highly appre-
ciative intelligence.
On the 3Ist Of January, every act indicates n
full appreciation of what he was doing. After the
signature he told Mr.. Judd to carry the paper to
Mr.. Bishop, with whom it had been deposited be-
fore said that he at some other time would Gil up
the blank in the first item and Mr.. Judd further
testifes that be was perfectly clear in his mind, as
does likewise DR.. Oliver, one of his medical attend
ants, and Mr.. Stirling, his Minister of Finance.
Then he certainly was OF clear and sound dispos-
ing mind and memory.
The execution is within the provisions of the
statute-Mr. Judd signed it in the presence of
the deceased. . i" by bis express direction 1t is
attested by two competent witnesses subscribing
their names to the instrument. See Section 1865
of the Civil Code, which reads as follows
SECTION 1865. No VIII, except such nuncupatiye wills as
are mentioned in this chapter shall be valid, unless it be in
writing and signed by the testaior, or by some person in his
more competent witnesses subscribing their names to the will,
in the presence Of the testator.
1t will be seen that there no attesting clause is
necessary, nor need the witnesses be in the pres
ence of each other. This makes the execution of
the codicil complete, and the prepayment Of the
writing may well rest here, and leave it to con-
testants to show that the paper does not express
the will Of the deceased.
was at first inclined TO think that the fourth
clause of the codicil stood in a different position
from the others, but reflection has convinced me
that it does not for if it is argued, as it was, that
deceased never read the particular letters Of the
last clause, nor were they read to him, the same is
true of all the others. That is to say. that this last
copy was never read to him or by him, though the
same words were read from the copy from which
this last copy was made. But he had read the
other directed a change asked for suggestions
adopted the suggestions offered by Mr.. Judd. and
ordered him to copy 1t in.
In Day vs.. Day, cited in the note to page 4Gth Of
Jarman on Wills, and referred to by counsel of the
prepayment Of the will,-that if the testator did not
read the will. nor ,cdS Il read to him, it must be
satisfactorily shown that he was in some way made
with its contents. Again. in the same
case, it is said If it appears that the will in
question was truly copied from a previous will,
with the contents of which testator vas acquainted,
the instrument will be admitted 10 probate, though
it was not read By him or in bis presence" ! APP