The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-09-06

Upon the trial Of this action before Mr.
Justice Austin and jury on the thirteenth
day Of July, lss2, a question Of law was re-
| served for the consideration Of the full court
under Section s3f Of the Civil Code as follows:
The plaintiffs claim an undivided bali Of
certain rents amounting 90 Sl,l65, received
! by defendant in July, ISL for lands
/ rented to tho Hawaiian Agricultural Company,
al Kau 1t is admitted that the plaintiffs
may recover the amount they claim unless
/ certain paper executed 10y Nahala Is a will
and properly executed, and legally proved AZ
such before Judge Lyman, Circuit Judge; Or
a deed Nhich entities the defcndcnt 70 The
whole property so rented The proceedings
before Judge Lyman 10 probate Of the viii,
and also az to The administration Of the estate
ct Nshsls deceased are presented to The court
The defendant is the widow Of Nahala. The
paper TO DO construed is in Tho form Of deed,
| ior the nominal consideration Of cue dollar,
and on account Of natural love and affection.
| bearing date June 23d, 1879, and duly ac-
nowledgel July let, 1879 from Naha,a %
the defendant, his wife, Of the land rented
The paper was Witnessed by three sub
scribiug witnesses, and vas proved by kamai,
ono Of the Witnesses, 70 have been properly
executed under Section 1855 Of the Civil Coda
relative TO tho executions Of wills.
II was executed by a husband 20 his wits,
and 81 under our statute would be void a. a
decd at law The legal maxim Is that an in
strument shall ho SO construed 7f res 1tagis
ralsdi guam psrs1'.
The testimony shows clearly that the paper
WAS intended a will, and not as deed
Naha1 was old and feeble, and iiod within
three months after the execution Of the paper
He declared il 70 be a will, aud that 10 should
fare aNaff Altar hfn Iaafh re nmrTnr.
tiles under tho English Ecclesiastical law,
and under the laws Of many Of The States, Il
was a valid will Scr Rs3fsl3 on IFais Vol
ps. 1870 and n a Upon the facts a. they
now appear, IN the record presented 90 us, We
shall bold that it was a valid viii
Ii was limited 10 ita operation 10 part only
Of the tostator's estate. In such caEe gen
e-al administration Of the remainder viii Be
granted as OF an intestato estate, see Rsdfsi3
on VIZ T9l ps Ills Such ldministrt-
ton bad already been granted
The DEGREES in probate Of The will, and a.
b the administration o. the rsddno q The
estate, do not conflict, and can stand together.
On examination " tho record returned By
tho Circuit Judge, e appears that an ihs
plaintiffs were present az the probate u tbs
will, aud the plaintiffs kapela and Beheccs
contested the probate
Kapela alone appealed, but afterwards with
drew his appeal The ordinary notice by pub
location in case u application foT probate Of
will, was however not given and rs proof i
therefore informal
Judgment will be entered On favor Of the
defendant Whenever 10 shall 10 mado to appear
to this Court that the defendant OF some one
on her behalf has made formal application lor
proof 70 the will Of Nahaia deceased, before
Circuit Judge Lyman, aud that the said viii
has boon duly aud regularly admitted 10 pro-
bate after the publication Of This notice o.
hearing as required by the Statute and Rules
Of Court provided that Il this 10 not done b.
fore tbs close Of ihg January Term 1888, or
good cause shown why 10 10 not done, fudg-
meut will be entered Tor ihe Plaintiffs
E. Preston for plaintiffs; J Ntuahi iol
HoSoLULu, August 10, is52.