The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-02-05


absence of q subscribing witness who might
be called. 10 Johns. 1856. Wills oUer thirty
gears old, and appearing regular and per-
feet, and coming from the proper custody,
are said to prove themselves. Green on
Ev., Secs. 81, $40; Kay and J., 1l2. Wills
lost, destroyed or mislaid at the time of the
testator's death, may be admitted to pro
bate upon proper proof Of the loss, and OF
the execution and contents. l Phil. Eccl.,
lac l Jarm. on Wills, 221, and Note. In
the case of Sugden Y. Lord st. Leonards,
L. R., P. D., 154, the daughter Of the de-
ceased was allowed to prove from memory
the contents of the lost will, and written
and oral declarat tons of the testator, both
before and after the execution of the will,
were admitted as evidence. a lost or de-
stroyed 1oiH may be proved by parole. 81
Penn, 81. The due admission of will to
probate by Court of competent jurisdie-
ton, the judgment being unrevoked, is con-
elusive as to the validity of the will, and
binding upon all persons. l Hawaiian R.,
$50.
Probate Of will is not set aside, except
by very clear evidence of fraud. In re will
of Kalauhala. Hawaiian r., GA.
Lack of provision for a daughter is no
reason for refusing probate of the will.-Ib.
Time from which loiH speaks. In
general, will speaks from the death of a
testator, that being the point of time at
which it becomes operative. q Conn.,, 550
GIG. But often the language of the testator,
as when he uses the word ''now," or verb
IN 10 20 a %oI-a
with reference to the time il is used. Amb.,
| S97 1 Jarm on Wills, 318: Eq. Cas-. Abr,
210. But it will receive the former inter
probation if it can reasonably be made to
bear it. 2 Cox, Oh. 384.
DeUises and requests are Uoid for ANGER
| tai1aty, where the subject-matter of the gift
is not so defined in the will as to be ascer-
| tanned with reasonable certainty. 1 Jarm.
on Wills, 317 % Penn, 400 II Graft. 1876.
The person intended to be benefited may not
be so described or named that he can be
| identified. But, in general, by rejecting
| obvious mistakes, this kind of uncertainty
| is overcome. 1 Jarm. on Wills, $50, 348,
| $50, 383. Courts of probate jurisdiction are
empowered to canstrue wills whenever that
! is necessary to the due administration of
| justice. 81 Wis, 4O5, 419.
The construction of wills, however, fire.
quently presents embarrassing questions,
which can best be expounded by Court of
Equity. Tie case of an ambiguous will is
one peculiarly needing the aid of equity to
construe it. The discovery and enforcement
of trusts is one of the most important heads
of equity jurisdiction and as these very
| frequently arise from the language of wills,
| or from the facts connected with their exc
cution, a Court of Equity may properly
assert its right to construe wills upon that
ground, if no other. The jurisdiction is in
cidental to that over trusts. So n. Y. Us
Sick.), 221 Hun. IN. W, 739.
Questions as to the construction of will
can only be raised after the will has been
proved. Beav.. 579 40 CAL, 600. Courts
of Equity cannot reform will upon proof
of mistake, as they do contract, Mad,
| 1854; Moore and s.. $50 Conn.,, 81; 10
Am. L. Reg, 353.
The rule in regard to the admissability of
parole evidence to vary, control, or to render
| ineligible the words of will, is not essen
| TALLY different from that which obtains in
regard to contracts. It may be received to
show the state of the testator, the nature
and condition of his property, his relation
| to the contestants, and all the surrounding
circumstances. But this is done to place
| the Court in the condition of the testator, in
order, as far as practicable, to enable them
| the more fully to underst and the sense in
which he probably used the language found
in the will. New. and4d., 524 Is Pick,
400 Phil. on Ev., 532, SAT Jar. on Wills,
$40 Green. on Ev., Secs. 2S7, 289. Letters
and oral declarations of the testator are not
admissible to show the intention of the
| testator. Vern., 625 IA Johns, 1 2 W.
and s., 455. But see % Wend,, 149. Parole
evidence is not admissible to supply any
word or defect in the will. % Barb, 285 i;
| Gill. and j., 1877 8 Conn, 254. Parole
declarations of the testator about the time
| of making the will are often admitted to
show the state of mind, capacity, and under
standing of the testator but they are not to
be used to show intention that must be
learned from the language used. Tud.
Lead. Cases, R. P, 918; Conn.,, 254.
Parole evidence is admissible to explain
and remove latent ambiguity. / N. & S.,
345; B. & Ad., 1877; Met, 404; 2 Jones,
Eq., 377; Paige, Oh. 291. So also to rebut
resulting trust. 1 Jarm., wills, 157; IA
Johns, 1. Also to show fraud, to dis
cipher characters, or to explain local or
technical terms, Jarm., on wills, AIS,
All; Term, 147; B. & Ad., 1913; l P.
Wins, 421; 5 Ad. & E., 800. But where a
wrong name is inserted in the will by mis-
take of the scrivner, or where the name is
left wholly blanksparoie evidence is not ad.
Missile in order to carry into effect the pur-
pose of the testator. Metc., 1873; 4 Bro,
c. c., 81. But partial blank may be sup
piled, YES, Ch,, $50; Jarm., wills, $40,
Ss4; Will. Ex. 1887, 1O49, 1854. But where
the residuary legatee was described by a
wrong Chris tan name, parole evidence was
received to show who was intended. 1
Paige, Oh. 291; Johns, Oh. GOT; II Law
Rep, 65S. As to contradictory provisions in
a will, the rule is, that where there are por-
| ~ q will WHOLLY i,oaDo Of Stap6ipO