The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-02-05
DIGEST OF HAWAIIAN LAWS.
BY NJ. Thompson of the Honolulu
Bar.
"wILLs'' CONTINUED. }

The judge of probate may cite the execu-
tor to prove the will at the instance of any
one claiming an interest. 1 Will. Elk. 2O1;
Jarm on wills, 224; Rick. IS.
The attesting witnesses are indispensable
when they can be had, if the contest ants so
insist, as proof of the execution and anthem
ITCHY Of the will and Of the testamentary
capacity of the testator, at the time of the
execution of the will. 2 Green on Ev., sec.
691;1 Jarm. on wills, 226, and note.
Blindness is so far an incapacity that it
requires express and satisfactory proof that
the testator understood the contents of the
will, in addition to what is required in other
cases. 1 Jarm., Wills, 40; 8 Strobh., 297;
Rob. Eccl., 278. DEAF and dumb persons
will labor under a similar inconvenience,
and especially in communicating with wit
nesses, unless they have been educated as
to be able to write. Wharf. 4 st. Med. Jur.
sec. IS. But the witnesses must, to be
present with the testator, be within the pos
sible cognizance of his remaining senses. 1
Spears, 256 Persons deaf, dumb and blind
were formerly esteemed whelly incapable of
making will, but that class of persons are
now placed upon the same basis as the two
former, with only the additional embarrass-
ment attending the defect of another sense.
1 Wills. Elk. IT. 10; 1 Bedf wills, SO.
Idiots are wholly incompetent to execute
will whether the defect of unders landing is
congenital or accidental. LaeaaticS are in
capable of executing last will and tesla
ment, except during such lucid internal as
allow the exercise of memory and judgment.
It must be an absolute, but not necessarily
perfect, restoration to reason and rehec-
ton, and not mere temporary remission.
Taylor Med. Jur. 642; 3 Bro. c. C. AL; &c
Wend. 255; 1 Redf. on wills 107, 100; 81 n.
J. Ed. 633; "a Ills, $50; 9 Yes Ch Gil.
But mere aCeakneSs of understanding is not
sufficient to invalidate will, if the testator
is capable of comprehending the object in
view. II Ark, 292; Bradf., ~; 10 S. & R.,
"a. Monomania or partial insanity, is a
mental or moral perversion, or both, in re-
gard to particular subject or class of sub
jects, while in regard to others the person
seems to have no such morbid affect on.
Tayl. Med Jur., 626. 1t consists in the be-
lief of facts ia regard to the particular sub
ject of the affection, which no sane person
could or would believe. 1 Add. Eco, 297;
H., 70. When it appears that the will is
the direct offspring of this morbid affection,
it should be held invalid, Notwithstanding
the general soudness of the testator. 6 Ga,
1924; Gill;, 10; Watts, TO- Moore, P.
c., S41, s46; II Jnrist, 947.
Deliriana from disease or stimulus, while
the paroxysm continues to- such an extent as
to deprive person of the right exercise of
reason, is a sufficient impediment to the
execution of will. Ray ms, sec. 255,
800; Taylor Med. Jur., 626; Rush on the
mind, 2S2; 1s Yes, Oh. II; 2 Ak, VT, 1877;
1 Bibb., 16S But there'is not the same pre-
sumption of the continuance of this species
! of mental perversion, whether it proceed
| fronSs. In toxieations of stimulus or the de-
| liridm of fever, as in ordinary insanity.
Hfn, So. Car, 68; Mete., Mass, 545.
| nffsenite denentia, that is, incapacity, pro-
ceeding from age, very frequently comes in
question in courts of Justice in testing the
validity Of wills. If the testator has suf-
fcient memory remaining to be able to col
lect the elements Of the transaction, viz:
the amount and kinds of property he had,
and the number and names of his children,
or the persons entitled to his bounty, and
to hold them 81 mind suficiently to form
an understanding Judgment in regard to
them, he may execute valid will. 1 Redf.
on wills, 94-1O7; 80 N. Y, Ed, 7e1; 81 VT,
16s; Bradf., 800; Tayl. Med. Jur., $50.
Age itself is no sure test of incapacity.
Phil. 261. But when one comes a child
| again, he is subject to the same incapacities
as in his first childhood. 1 Williams, Ex.,
So; Ch., 1911; Ga, 324. If a person is
| induced by fraud or undue influence to make
will or legacy, such will or legacy is void.
1 Jarm. on wills, So; Redf. on Wills, 507,
537; So n. Y, $50; 6 Yes, 500; H. L. Cas-,
2; so Md, 466, $50.
But if all or part of the subscribing wit
nesses are absent from the Kingdom, de-
ceased, or disqualified, then their hand
writing must be proved. Yes, Oh. $751; 1
Jarm. on Wills, 226 Rand, SO. 1t will
be presumed that the requisite formalities
| were complied with when the attestation is
formal unless the contrary appears. 1