The Hawaiian gazette., 1876-04-12
supreme Court of the Hawaiian
IsIands.--En Probate.
BEFORE IN. JUSTICE JUDD At cHAHBERs.
IN RE PETITION FOR PROOF OF
WILL OF RER- ROYAL HIGH
NESS REKAULUOHE PRE-
MLER, DECEASED.
DECISION.


DECISION.
This is an application by H. II. Chas. Kanaiui
for the probate Of the will Of Her late Highnes
NJ. Kekaulnohi, Premier alleging that said wi
was destroyed after her DEATH aud praying tina
it be established upon proof Of its contents.
is proved that Her Highness died on the 9TH {
June l845 that she left an only son Williar
Charles LHnalilO, who became King 10 1873, al
who died in 1874, devsing his property to th
petitioner, his lather. The following Is the vii
sought to be established as propounded in the pc
luton:
Ii bsqueath all the estate formerly Of Kai
kioewa to Moses, son Of Kinau and Kekaanaoa
FL bequealh all the estate formerly of Hoa
pilikane, to Lot, son Of Kinau aud hekuanaoa
3.-1he estate OF Knau is TO 90 to Vctori
Kamamalu the daughter OF kinau and kekua
naoa
Al bequeath all my own estate held in M
own right TO my own son Lunao
5.-'That If Moses or Lot should die before
Victoria kamamau, then she shall inherit the
property.
G.-1'hat if Lunalilo should die first, then the
children Of Kinau shalt inherit his property.
THAT il Moses, Lot and Victoria Kama
mau, should die before bunalilO, then he shall in,
heut all their property hereby bequeatbed.
6.-That Alexander LihOho, son of Kinau
and Kekuanaoa was to take nothing as he was to
inherit the throne
-Four witnesses have been examined to esiab-
lish this will, viz, ;-Auwai, Kiliuahe, Kamaipuu-
! paa (N) and $. NJ. Kunakaa, the three former
claim to have been present at its execution but
before considering their testimony, 1t is neces-
sary to examine the principles Of law applicable
to the proof of lost wills.
1t Is laid down by Swinburne and adopted by
later text writers that If testament be mlde
in writing, and Afterwards lost by some casually
If there be two unoxceptOnable witnesses who
did see and read the instrument written, and do
remember the contents thereof, the two witnesses
depOsng to the tenor of the will are sufficient
for the proof thereof in form Of law" and
Inl, Williams on Executors, page 3l2, the fol-
lowing comment is made - And, at this day, it
Is quite clear that the contents or substance of a
teslameniary instrument may be thus established,
though the instrument itself canuot be produced,
upon satisfactory proof being given that the in-
strnment was duly made by the testator, and was
not revoked by him, for example, either by show
ing that the instrument existed after the tesla
tors death, or that IL was destroyed in his life
time wilhOn! his pnyily or consent"
The following is the note TO Redfeld on the
law Of wills, p. 34S. The practice of the Amer
lean courts, Of receiving parol evidence of the
contents Of a lost will, seems to be universal aud
without question, notwithstanding the stringent
statute requirements in regard to the mode of ex
ecu.ing wits and lost will may be established
By the testimony of a single witness, notwith-
standing the statute requires the execution 10 the
presence Of two or more. Bot this evidence must
come from witnesses who have read the viii and |
whose recollection of its contents is trustwor- |
thy SOS
In Davis ct al. vs.. Sigouruey, Met 4s9, |
Wilde j. says =" To authorize the probate of a |
lost will by parol proof Of its contents, depend.
ing upon the recollection of witnesses, the evil
dence must be strong, positive. and free from all
doubt. Courts are bound to consider such evil
dence with great caution, and they cannot act on
probabilities" In this case the witness was the
Attorney who drafted the. will, but as be could
not testify with absolute certainty as to some
parts OF it, the Court refused to establish it.
None Of the witnesses produced in this case at
bar, evsr read the will. AuBai says he heard the
King read it before slgning it kiinahe says Ku-
luwailehua read IT, and he also says that the King
read it; and S. NJ. Kamakau says that be heard
it read in the Legislative Council after the Pre-
mier's death komapuupaa says she heard it
read in the presence of the testator. strict
ruling would fully Justify the refusal of the pro-
bate OF the will on the ground suggested that is,
that no one witness testifes from actual recollec-
lion of its contents but from recollection of
T.
The fact however, that the King was the reader I
Is testified to by one witness, would repel the
possibility Of a motive for a false reading of it to
he testator, (herself the highest chief then liv-
ng and II having an important bearing as a I
State document, and |, therefore, Ia view OF the
peculiar circumstances of this case, do not rule r
hat the witnesses must have actually read thus \
WILL in order to be allowed to testify as to its con-
ents.
Let US see, however if the evidence bears the /
est OF being strong, positive, aud free from all
oubt"
Auwai says the will was made one month be-
're Kekauuohi died, and that it was signed three
r four days before her death in the presence of
he King, John Young aud the young chiefs who
ere sent for from school, and that Kamehameha
H. and John Young thea signed IT,
hlnahe says the young chiefs were not pres j
IT. and that the King and Mr.. Young signed it
few days after the testator signed 1t, aud that
lie died a few weeks after signing it Auwai,
ilinahe, and Knmaliau agree that the will left
le property OF Knkioewa to Moses the prop
'ty Of Hoapilikane to Lot, and her own property
!, her son Lunalilo; Auwai aud Kiinahe agree Pl
lat the will LETT the property of Kinau to Victo- Is
a, and kamakau says that it left the estate of 10
or own family to Victoria and LunaIilo that is " !,
lat L1nalilO and Victoria we're to divide the d.
mily Tor kinaul property equally, but that her az
W property was to 20 TO her own sou. Auwa %
Us that the will directed as follows =" Regard ue
Moses, Lot and Victoria if either of them die 81 81
e others were to inherit, and if Lunalilo died "a
ST they were to inherit" He adds that when IA
III. came in, Kekauluohi told So
IN, that if Moses, Lot aud Victoria died. then III
lDalilo was to Inherit" but he does not assert ;,
at the will contained these words. Oe
kiliBahe says the will provided that if either ga
oses, Lot or Victoria died then each would in 10
rit from the other; if they all died before Luna 10
D be would inherit all; if LunalilO died first, ra
ey would inherit an
kamakau says that il any one Cot the four) u
I'd, the Others would inherit. If all bat one al
ID he would inherit. pr
The above statements of the recollection Of the eS'
ferent witnesses vary so essentially from each SUI
ler, that am at a loss to say what were the ne
nal terms OF the Will and do not feel at lib ue
Y TO call out the testimony where it happens the
coincide and from these fragments frame a
J. Using the caution which Courts are bound 3 3
exercise in such cases. cannot act upon the WI WI
liability that the recollection OF Kilinahe aud ~
wal servants OF the family, are any more like .ue
% be more Trustworthy than that Of Kamakau DOT
Historian whose learning is certainly greater We!
n that Of the other two. ina
Here l must aIlude to the testimony OF Ka- sal'
pnupas who while present at the signing in I'VE
presence OF the King. states that tie will left tne
property Of the testator to her son Lnnalio OF .
that he was the only one mentioned iD her lot lot
aud that she did not hear any other property "