The Hawaiian gazette., 1884-06-18
Supreme Court OF 1.-The Hawaiian Island
In Banco. April Term, 1854.
In THE NATTER OF THE ESTATE OF KAUALII
DECEASED.
Judd CT, MeCmly aud Austin J. j., Opinion
Of the Court By Judd CO..

This is an appeal from decision Of Circuit
Judge Lyman refusing 10 revoke the probate
Of the will of one Kaualii, deceased. 1t ap-
pears that on the 2sth of August 1880 Judge
Lyman admitted the will to probate and no
appeal was taken by the contestants. On the
30th November 1883 petition to revoke the
probate of this will was filed before the same
Judge. Hearing was had on the 7th of March
1854 and the case was submitted upon the re-
cord of the evidence upon which the Circuit
Judge admitted the will to probate. No ad-
ditional testimony was offered. 1t is claimed
OH the appeal to this Court that the instru-
ment propounded as the will of Kanalii is not
equivoca on it's face and is plainly in form a
deed Of conveyance from him to his wife and
has no testamentary character.
This Court decided in Kapela v. Hoohoku
1 Haw. 5l3 that an instrument conveying
land, in the form of deed. having been de-
clared by the maker TO be his will, and that
it should take effect after his death, being at
Tested by two or more witnesses, should be
properly construed as a will.
Upon review of the testimony taken, we
are of the opinion that the instrument Id ques-
ton was properly construed as u will. It is
fully proven that it was intended by the maker
to operate az a disposition of his estate after
and the conversation held at the bedside Of
the sick man, who was directing its making
all shows that it was so intended and
made in the expectation of death, which o.
CURED soon after. No consideration passed,
but it is stated in the instrument to be $1,000
and the faithful care by his wife of the tesIator
until the end of his life." One witness says
that the maker said be wished to give all his
| property to his wife, for if he recovered there
would be no harm in having made the will.
and if he died it This property would be set
| tied. Another witness says that Que Mahiki OBJ
jected to Kaualii's making will, saying thai
| bis relatives would not trouble his property
Kaualii said to Mahiki, 'No. Make a will
lest you and other relatives disturb the pro-
perty Of my wife"
| Having thus found that there was good
| ground for admitting the instrument as q will
and no reasons shown fog revoking its probate
the appeal must be dismissed. But we wish
to say further that, while not questioning the
| jurisdiction Of Probate Court to entertain a
petition for revocation of the probate Of a
will after the time for an appeal has passed
there should be alleged in the petition good
| grounds for making such request For ,ex-
ample, the existence of after discovered evi.
dence or of some evidence which was not sub.
mitted to the Probate Court which would
| place the matter in new light and show the
| Court that mistake had been made. II
other words the application for revocation
must not be merely a method of gaining ar
appeal lost to the contestant bY want of dilig-
ence.
In IL Allen water Stickney) the Cour
say that the English authorities recognize as
sufficient causes of revocation, forgery Of the
| will frand in obtaining Drohafo neOlpct nj
mismanugement in conducting the suit, or the
| production of later will.
The Court say, further, that Courts of pro.
bate have undoubtedly the authority to correct
errors in their DEGREES upon clear proof o.
frand or mistake on points not actually pre-
scented and passed upon. Such we deem to b.
proper exposition of the law.
Judgment Of the lower Court confirmed.
+. NJ. Hatch and @. Brown for petitioner
W. r. Castle for respondent.
Honolulu, May %, 1884.