The Hawaiian gazette., 1883-08-22

IL RE-PRooF OF THE WILL OF PUHAIKALA
kELIIwAHALoLO AND kANEKoA, HER
HUSBAND, CONTESTANTS. ANAHIwA AND
AwANA, HER HUSBAND, PETITIONERS,
JuDp, c. J., AND AUSTIN, ].
oninion of the Court bv Judd. c. J

Opinion Of the Court by Judd, C. j.
This was an application for the proof of a
last will, heard originally by Mr. Justice
Austin. The will was by him established
and admitted to probate and the contestants
appealed to jury at the last April Term and
the Jury sustained the will.
The issue for the jury TO decide Was
"whether or not the said Puhaikala did exc
cute will devising her property in Palama,
Honolulu, to Anahiwa her grand daughter,
the petitioner"
After the evidence for the petitioner was
in, the contestants counsel moved for iudg-
ment on the ground that no case was made to
90 to the jnry as the testimony for the petit
toner was conflicting This motion being
overruled, the contestant now excerpts. Upon
a review Of the testimony we find there was
evidence, adduced pertinent 10 the issue and
sufficient to support the verdict.
The counsel for the contestant asked the
Court to instruct the jury that, "In order to
find verdict for the plaintiff (the petitioner
hcrein), the Jury must he satisfied that the
will was dated, made and duly executed and
that the contents were as alleged, without any
reasonable doubt. If the petitioner has failed
IN any of these points, they must find against
the will, (Which the Court refused and in
form; that in order TO find a verdict for the
plaintiff (the petitioner herein), the jury
must be satisfied that the will was made and
duly executed aud that the contents were sub
stanually and in every essential respect as al
legged, according TO the great preponderance
of the evidence, and if the petitioner has
failed in any Of these points they must find
against the will.
We thiGk that the Judge was right in his
charge. As to proof of lost will "The
proof must restore the entire will, not, per-
haps every letter and word, but all that is i'm
portant; so that in granting probate the
Court will feel assured that it is the probate
OF the same will which the testator executed"
"Redfeld's Cases Law of Wills, p. 2l7.
In Burton VS.. briggs 20 wallace 1871, Mr..
Justice Swayne says sit is an axiom in the
law OF evidence that the contents of any writ
ten instrument lost or destroyed may be
proved by competent evidence"
Says GTeenleaf LIST Sec. 500 "But whether
1t 1.-THE record) be ancient or recent, after
proof of the loss, its contents may be proved.
like any other documentby any secondary evil
dence, where the case does moi, from its nature,
disclose the existence of other and better
evidence"
But there is no rule of law requiring the
execution oil a last instrument TO be proved
beyond any reasonable doubt
The Court further instructed the Jury upon
the matter Of date, that at was not necessary
to prove the date with accuracy or exactness;
that dates rested uncertainty in the human
memory; that mistake of few months or
longer IN the date would not be fatal to the
will if 1t was substantially proved" We
think this instruction was in accord with the
law and was correct.
''The Court further charged that the infan-
cy Of the petitioner was TO be considered with
the other facts in the case npoa the question
of delay and laches and that the neglect of
Kupahu The alleged executor, if any, should
not injure her rights under the law"
There is certainly nothing in the law to pre-
vent an executor under will in favor of a
minor from presenting it to the Court during
the minority of the devisee, but the neglect to
do so should not operate unfavorably to the
minor, nor raise any presumption that the
will was never executed.
Having thus disposed of the exceptions,
the verdict of the jury in favor of the petit
toner must stand and the will be admitted to
probate.
F. NJ. Hatch for petitioner. Z. Preston
for contestants.
Honolnln August l2,b 1891