The Hawaiian gazette., 1889-04-16

Il RI ESTATE oF CHARLES BRENIG,
DECEASED.
rEr1ar ---1. q. O.. aI'cCILT, PRESTON AND
EICEEE-CS. ~
M -nstsat Dole did uot SO, being Executor
q. the 6ecedsat's Viii
nnn a 1 -ts C1uT per Judd, c. J..
A reuuou for prolate Of the viii OF
Charles Breni-. deceased, was filed
b. - d. Dole. the Executor named,
~ -lE str October. ISIS. AT the
herring Nr. Y Y Ashford appeared
fu- -he widow. Mrs. heuahU Brenig,
zu6 Ne.sS-S. a. Rosa and G. l.. Carter
zrT7Dsa-el for samuel Maikai, claim
ruE q Iia next 0i kin 10 the son of
6ere6eE- Bo-L these parties fled
zrlTsaL-LEea~ cgure>tIug the validity of
IN SSH on -he ground that the maker
rherer Ua~ NOT " sound ana dispoSing
ruE
Az -El hearing the witnesses We're
tZl-lL-e- ty prepayment. : counsel, and
crosse -l-lInei 10y contestants cOun-
~ E-- The contestants offered no
evidence tending support their claim
Lll- -le -eS-arn- was al unSOund
El- IEC Court admitted the Will
an probate. wlurggpoD both contest
zl-- noted "a. appeal 20 = jury, and
tLt ease uELr0u % the January calcn-
Gar ffl -le fourth day % the term
c1LL~. -0- -le prepayment OF the viii
Eulre- -le llUrl Nr. Justice BlCke
ECL a. dismiss -hr appeal on the
G-E--- that no issue OF fact was
mac l.y appellant, nor was any tried
lse.u-e rle Justice admitting the viii
a. PROBATE upon which an appeal
c1-l la taken; = that no affidavit
lz- been filed ly appellant showing
-l1t -lIe estate exceeds the value offive
luulrei dollars ,G that no notice of
aF-lll has been filed 10y appellant rs
Tsr1rllel ty Eulez, r that appellant
a. rl- show nor allege that she Il
an Eel--l---lw ot the dcCcdenT, aud
-lar -Ile appellant Sid uot claim, and
ea- -a-- uw claim, before the Probate
Court such estate or any part thereof,
urE Interest therein. by virtue OF
zE Ul.- u- Elementary devise, or
Er U- glg statute OF descent OF
property IN this Kingdom, and that
E issue u- fact au ~Gch claim was
La E The appellant before said
PROSTATE su---- 3 thar no Issue of
t-- a. .eea certified 20 this Court
rr -E. ErU1l-. Court as being an
ISSUE l- upon which amy Judgment
So -Ler9l Hy such Probate Court
o. -ll - January the Court rem
de-e- Judgment li>missing the appeal.
~ rll- bearing the widow changed
be- counsel. GismisSIng Mr.. Ashford
aIll-e-zIu ming SIr. Rosa. who excepted /
o. rle ruling % the Court granting
proponents motion 10 dismiss.
81 TIKI t0CBT.-We held IL the /
argument 0u the 18th March that a /
Illl u exceptions, and not an appeal, I
was -la proper method Of bringing /
~ THIS matter - the full Court. I
There WAS q Judgment OF the Court in /
regular session made ia the progress
at tle Proceedings, and 10y force of
-elLeE ~a1 u- the Civil Code an eX-
cep--1u and not an appeal would lie
r. -LlS
The statute upon which the appeal
T. q FE-y tr0m s. Probate Court Is
founded ! - follows: Act Of 1864,
Compiled Laws, page 1874, Section l.
n LLla- from and after the date of the
pls>-E- a: this Act, whenever the
value "a -le estate OF any deceased !
person shall exceed five hundred dol
Lars, amy person claiming before any
Judge sitting - = court of probate,
Slel estate or any part thereof, or
sl--T Lzlr5raS- therein, by virtue OF any
VII or te>tamentary devise, or by
EIr-l- Il the statutes Of descent of
property iu this Kingdom, who may
dem himself aggrieyed by the de-
cl>lgL ~ such probate judge al cham
be-S- ulzy- upon taking his appeal to
tao Circuit Court or Supreme Court,
u any ruaIrer II fact i in issue, move
rle appellate court that the issue of /
iac- NAV be tried by a Jury. and his
motion shall not be denied
We think the proper course should ,
.te -La- such appeals should first be {
ulacel aL tile calendar Of eases with 7
ON q jury and on the appellants )
motion being made that the issue OF I
.act be- t-ieI 5y jury, and upon his |
showing that De had complied with {
Jas statute iu ali respects, Ms motion [
Fu-id 10 -rsuIe-i, and the case would Ii
b. ordered to the calendar Of jury 2
.l-eS Ter -rlsL {
we now ta,he up the grounds upon '
rlllc- --lr appeal was dismissed: 81 Z [
Z Thar no issue NJ facr was made by C
.ssr-e--a-lr- lur anything tried before [
lE j -l--lce admitting the will to pro- ,
i4-e lPlu which an appeal could be ,
akel-" II was urged by proponents i
.0-Ll-l- that ~ Iie contestant offered :
DE- evidence To show that the decedent a
ga Cf uus0uud mind when lie made d
De- alleged VIII, there was no issue c
-afE-eeu her and the pr0pOneat, and L
He could ler le said 10 have been f,
aEzrierel by the decision - admit Q
iug tle will 10 probate But this Ii
ssue E-as made by tie appearance OF o
h. widow contestant in which she a
lI-ieS-> TIE probate on the ground that q
be- maker OF the viii was not OF sound f
liu1- There may be an issue Joined, IL
10l-L rll contestant produces no Il
TE1eure ID support Of his side OF ii. 4 p
!. r1L-e-tiI- party having made his Il
So can reserve hiS proofs for the r,
l-r --1- o
ne 50 -eI think this good ground IA
" ll-lll>>I-= The appeal. a,
I'm second ground i. that no affi-
avn at value " the estate was filed. J.
81 SIS see have seen. il does not APP II
e- than the contestant would not eI
e He'd tie affidavit Of value on iu
Tres -iuE TIE motion to have the Ct
.>le -ried Jy jury. The objection
sens rg IL 10 be premature tie
le starute does nOt require that III
-oat rhat the estate exceeds W
D. raIue u 500 should be er
lale within ten days after the
1a7--a-- IL The prnil.3ra Court nor on