The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-05-16
WEDNESDAY, NAY le, 1877.
Supreme Court of the Hawaiian Is.
Iauds-Aprii Term. 1877.
In re Proofo Tie WiRcf RUT1A KAlLAKEA
deceased
Before Harris, C. J., Judd and McCu!ly, ]. j.
Opinion of the Court by McCully, j.

Application for the proof of this Will was
made 10 Mr.. Justice Judd, sitting in probate, and
at the hearing, Sept. Stb, 1876, testimony was
heard at large on the part of the proponents and
heirs at law who contested; upon consideration
of all which the court refused probate on the
ground that the teStator was insane, imbecile, or
otherwise non cODapOS at the time the will was
executed. From this Judgment the proponents
appealed, stating the ground OF appeal to be
that al the time Ruta Kamskea made and
cuted such last will and testament she was of
sound aud disposing mind and memory and in
every way fitted TO make aud execute such dOcu-
ment." On this issue OF facts the appellants
claimed jury under the provisions OF the act OF
1864, md at the October Term obtained this
verdict "Ua lava ka noonoo maikai Ruta
kamakea no Ia hama ana palapaia kauoha." ie.
Ruta kamakea was sufficiently sane and com
pelent to make will"
Exception taken 10 the verdict, and mo-
lions filed for arrest Of Judgment and for
trial, but upon its appearing that no Judgment
was asked for in the Supreme Court, the sole
issue on which the jury had passed being the
competency OF the testatrix 10 make will, and
not the further fact whether being competent,
she had duly executed such, the motion in arrest
was withdrawn, and the court holding that the
verdict shoUd be certified back to the Probate
Court for judgment the whole matter, the
contestants counsel likewise withdrew his mo-
ton for new trial. The case being SO RENTED
the contestants counsel then argued the qaes-
ton Of the sanity of the testatrx but the justice
held that that fact having been found by the
jury was no longer u subject of consideration in
the Probate Court. aud there being sufficient
proof of due execution in respect 10 signature
and altesiaiion admitted the will 10 probate,
from which Judgment appeal has now been taken
10 the Supreme Court in banco.
Cecil Brown for the proponents appellees.
w. c. Jones for the contestants, appellants.
Mr.. Jones The Probate j Judge was not bound
to render judgment upon the verdict OF the jury
as taken, but may review the whole circum-
stances of the case and render judgment OBJ
Stdlite UeredictO.
The evidence, per the record, does not show
proper execution.
Mr.. Brown, contra.
Per Curtain. Previous to the Act of 1864
Up. 20) to authorize the trying of Issues of
fuct in matters Of Probate aud Administration
10y Jury, it had been held, stated in the
preamble that statute did not permit an APP
peal 10 Jury on matters Of fact under investi-
cation in probate, and this Act provided that
thereafter any person claiming interest in an
estate of a deceased person, which sball exceed
five hundred dollars in value, by virtue of VIII
or by the Statutes of descent, who may deem
Judge may, on taking his appeal to the Circuit
or Supreme Court, have any matter OF fact
which is in issue, tried by Jury. and his mo
ton shall not be denied. and the appellee may
claim likewise. The object Of this law plainly
is to give either party TO probate matter the
privilege, by appealing, of the verdict of Jury,
instead of the decision of the Probate Judge, or
OF the full Court IN banco in all issues of fact.
But os what avail would verdict be if not con-
clGsiys . i529 he matter found; il upon ITS benz
certified to the Protate Court, The Judge OF
Probate may treat it as the mere opinion of
twelve or nine men, who have been asked to
pass upon it? Such construction would not give
any valuable right, never to be denied 10 parties
asking it, and would leave the settlement of
probate cases substantially as before the passage
of the Act.
But would there be no remedy against a YER
dict which ought not to stand The learned
Counsel for the Contestants remarked IN argu-
ment that the question OF the effect of such a
verdict had never been judcially settled here
aud We are Of opinion that he has mistaken his
remedy in not pursuing his motion for new
trial, (probably) under the view that the Pro
bate Court could review the verdict and render
Judgment notwithstanding. Without doubt all
the usual methods of combating verdict, as by
exceptions. motion for new trial. motion in
rest OF judgment are open in these cases, and
equally without doubt, it is that if the verdict is
not SO avoided it must stand as conclusive and
final adjudication. Not having been thus NULL
fed the verdict bound the Justice IN probate to
take as being true that the testatrix was Of
sound mind, however, his own opinion might be,
and it likewise binds the court in banco.
Looking further upon the evidence of the eX-
ecution of the viii we are satisfied that it con-
formed to the Statute. There were five SUBJ
scrbng witnesses, aud if at least two OF them
signed in presence OF the testairix alter she had
signed, or marked, the will is not invalidated by
others signing not in her presence or after her
death.
The Judgment of the Probate Court is con-
frmed.
CHAs. G. HARRIS,
A. FRANCIS JUDI.
LAWRENCE McCULLY.