The Hawaiian gazette., 1875-04-14
HAWAHANGAZETTE
AN INDEPENDENT JOURNAL,
DEVOTED TO HAWAIIAN PROGRESS.
supreme Court. January Term. 1878
N TEE NATTER or TRE ESTATE OF
rHrnpETT " nErrlrE nrrrISrn


THE0REILCS NETCALE DECEASED.
Before Gas. c. HARRls and A. F. JuDp. J.,
A motion IS made fOS trial by jury IN the 70
lowing AFFIDAVIT:
And now at this day cone Helen Roland an
Jalia ProsSer, TWO OF the respondents and The AZ
I peiants herein. and state that the value Of "a
\ estate Of the said Tbeophilus Meteah. deceased
I exceeds $500 that they claim interest therej
| by virtue Of the will Of the said deceased
that they feel asgrisved By the decision Of n
| Probate Court Of This Hingiom. made herein $
I Chambers 90 the 18th day Of November. 1874
[ on the bearing Of the petition Of C. H. Levers
administrator dated the llth day Of November
1874; that there are issues Of fact herein whiel
require the verdict Of a jery. and they therefor
respectfully move the Court that the folloEin.
issues Of fact may be tried by Jury according L
the provisions Of The aei OF the Slst day Of De
cember, 1854 to Wit:
/. Have the several alleged claims under prom
issory notes and interest thereon. in the said pc
titlon Of the said {. II. Levers, alleged. beer
barred BY the statute OF limitations
, Were the alleged debts or claims Of sic.
2+446 70 n. HacSield Il Co, and 81 33l to II
A. Wideuann, contracted by the tssiaior Theo
phllus Mstcalf, deceased, or were they authorizes
by hin and are the sane Just and valid claim:
against the said estate!
3. What m0ueys should the said c. Fl. Levers
the administrator. be charged with rs having been
received by him as administrator Of this estate
or which be might have received without his own
willf1l defaulis
l. Was the said c. H. Levers entitled to be
allowed the sum Of $500 for compensation and
500 for costs, or any part thereof and if SO, how
muchl
5. Is the said c. II. Levers authorized to
pay The said several amounts for which be claims
credit IN his accounts rs debts Of the estate OF
the said Tbeophilus Metcali deceased?
Dated this 4th day Of January. A. D. 1875.
JUtIA PRosSER,
HELES ROLAND.
Subscribed and sworn to BY the above named
appellant julia Prosser on her own behalf Of her
eo-appellanI the said Helen Roland al Houolalu.
10 the Island OF Oahu. one OF the Hawaiian Isl
ands. on Monday the Alb day Of January. A. d.
1873 JULIA PRoSSER-
BefIre ne.
WurER B. SE,l. Clerk
The law applicable to the case, first to be no
tieed, is the l24Ist Section of the Civil Code
which reads as follows:
Matters Of probate ard Of administration.
shall be heard aud determined by the Judge or
court having Jurisdiction thereof, without the in-
terventUn Of jury
This law vas modified By the act passed 3lst
day OF December 1854 entitled an act to authorize
the trying Of issues of fact in matters Of probate
and administration BY jury. The preamble and
the first section. which are the only parts of the
set applicable to this motion. read as follows:
Whereas, the l24lst Section Of the Civil
Code has been held not to permit an appeal to a
jury, on the validity Of any will or testamentary
devise, or any facts touching the descent of pro-
perty. when such will or testamentary devise is 4
matter Of Investigation in probate therefore. be
It enacted by the King and the Legislative As
sembiy Of the Hawaiian Islands in the Lesfsla-
ture Of the Kingdom assembled:
SEc. l. That from aud after the date Of the
passage Of this act, whenever the value Of the
estate OF any deceased person shall exceed five
hundred dollars, any person claiming before any
Judge, sitting as Court Of Probate, such estate,
or an! part thereof. or any interest therein. By
virtue OF any Will or testsmeutary devise, or by
virtue OF the statutes Of descent Of property in
this Kingdom, Who may deem himself aggreyed
By the decision Of such probate Judge at Cham
oers, may, upon taking his appeal to the CIR
tut Court or Supreme Court. If any matter Of
act Is in issue, move the Appellate Court that
he issue Of fact may be tried by jury, and his
motion shall not be denied
The Section 124l Of the Civil Code, therefore. |
.emaias in full force, except SO far as the last
,ited set has modified it, and this &C. only applies
o the validity Of will or testamentary devise, I
y facts touching the descent Of property, for in
tauce lineage, adoption, or the Ike. This was
be intention Of the act. It has never been held I
r supposed to have any other application. and
be settlement Of estates would be iuterminable
every order Of judge in the progress of ad-
linistrztiou might be appealed TO jury, BY every
ne who may think they bsd an interest in the
state, or By every one, who. having an interest
0 the estate, might see 6t, when prompted By 8
tigious spirit, or BY i'll temper generally, to take
I appeal to aiury. By examining the affidavit
Is apparent that there Is 10 fact at issue regard
lg the validity Of the will Of Mr. Metealf or re-
sriing the descent Of the property, and on this
round alone, if this we're only one, the motion
Inst Be denied. But BY reading over the allega-
ous Of the issue Of facts in the affidavit, it will
e found that not one Of them contains any ale
alton Of fact upon which jury can be called
} give verdict: 1st, 1t has already been ad-
lifted that the facts being as they are, and un-
lspatably so, the PrOuissory notes in question
s matter Of IaEl are not barred BY the statute
T limitations.
%, That the suns mentioned ia the second
legation the amounts being undisputedl were,
: : matter Of law, authorized BY the viii Of Mr..
IeieaIf and are Just and valid claims against
5 estate
3D. 1t is matte, Of laz what moneys the ad-
Illustrators should be eharged-Eith the Auounts
csived being unqae=tioned-and be has been :
lsrgsi With all the law allows, and therefore
sre Is 10 matter for the jury on this allegation
4ih. The statute fIss the amount Of recon-
'use to be received By the administrators, or
YES to the judge and not to the jary the author-
: to adjadgs the amount
5th- A court Of competent Jurisdiction has ;
-ssiy adjudged that the administrator vas au-
orizsd 70 pay al the amounts for which be =
aims credit, and in point Of fact directed him to
y them. This has been done as q matter of {
= All the facts as regards amounts and cir &
instances Of payment being u1disp1ted aud IN I
=PuiabIs.
Gas C. HAzzIs, {
A FRlyCTs JUpD.