The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-11-19
Supreme Court of the Hawaiian
Islands.
II RE THE PRoBArE OF THE WILL or
john \. RoHiNsoN, DECEASED.
BEFORE MR.. JUSTICE M'cULLY AND A JURY.
CHARGE OF rnK COURT.

CHARGE OF THE COURT.
The COURT Gentlemen, the will in
question has been proved according e
the law OF this country, namely, Il sign
ing by the Testator and witnessing by
two or more witnesses, in this case three
witnesses, in his presence. do not
give much value TO the attestation OF
Mrs. Roy because she could not write
and presumably could not read writing.
and do not value the testimony of such
a witness very highly in proving the sig
nature of the Testator and the identity
oil the instrument
Mr.. Thurston having the matter in
charge perceiving that, then called in
Miss Roy after the name of John Il
Robinson had been signed, and John n.
Robinson putting the instrument in sight
OF Miss Roy, and as l remember his
hand on his name, said, that is my sig
nature and my Will: that is equal To her
seeing him sign his name, for our law
does not require, and very frequent prac-
tice has established il, that the two wit
nesses shall sign al the same time, they
must each sign at the request and in the
presence of the testator, but not at the
same time nor in the presence OF each
other. Now, ii that IS the case, he writes
his name but once, one witness sees him
write it, as to the other he places his
hand on it and says, this is my signature
so attesting it. The third witness was
Mr.. Kinney, though not third in order
"In order that you should find a
verdict in favor of the will,n as it is
called, in favor of those who propose the
will, the executors, the jury must be
satisfied that at the time of the will, John
n. Robinson, was of full age-that is not
doubted and that he was of sound
mind" AS TO saving what is sound
mind, will come to that hereafter. am
at present going through the instructions
asked for by counsel, and those are the
words of our law. And will say further
that, subject to such qualifications as |
make, that "a test OF testamentary
capacity, or capacity TO make a will, is
whether at the execution of the will the
testator could remember the property
he is about to dispose Of" | will qualify
that; it would not be necessary that a man
should be capable at the time OF eXecut-
ing his will of marking an inventory OF
his estate, and that instruction is of less
importance in this case because they did
not undertake TO make an inventory OF
the estate, it was will in wholesale terms
for the most part He mentioned his
homestead in Honolulu and everything
thereon, and all my property elsewhere
in Honolulu and in Eva, and all my
real estate, without describing it, money,
stocks, bonds, mortgages and other pro-
perty, real, personal or mixed OF what
ever description and wherever situate OF
which | may die seized or possessed, il
was in general terms. 1t is safe way
to make a will, and one that is often
practiced. Where there is an enumera-
ton OF every piece OF property, real or
personal, and designation where il
shall go to, then the property that is not
mentioned, that is not devised, is con-
sidered as not included in the will, and
goes as if the man had made no will. 1t
is necessary to distribute property where
there are many devisees; of course it
has got to be enumerated and men
toned, but safe and careful drafter OF
a will in such case would make clause
providing for residuary legatee, de-
vising all that has not been mentioned
to some purpose or other or to some
person.
Another point OF law requested to be
only have had the power to answer sim
pie questions, but a sound and disposinp
memory" l give you that, but it is as
have said before, it is not required that
he should have been able to make an in
ventory of his property at that time, he
need not have such a memory as that
" He should be able to remember the
persons, the members OF his family and
the objects outside of his family whom
he wished to provide for in some way
Again A sound mind is one wholly
free from delusion." There are two
kinds of decisions, an insane delusior
and morbid delusion, because all de-
lusions are morbid actions of the mine
or insane actions of the mind. it would
be a delusion if person persistentll
supposes facts which have no existence
at all and acts as though they were
facts. II a man, for instance, believe;
that an affectionate wife or affrctlOnatt
child were pursuing his life, were plot
ting, were trying to kill him, there being
no foundation at all, we should say tina
he was laboring under delusion. AnC
sometimes he might in, as ii in self de
Tense, kill the person under such delu
sion. But as no delusion has beer
proved in this case, l have only Spoken
of it because it is in the instructions tina
| am asked to give or refuse. :" All 0
the intellectual faculties are TO exist in {
certain degree OF vigor and harmony.
Yes, that is a general description o
soundness OF mind the propensities
affections and passions being under tin,
subordination Of the judgment )" that i
a general description OF proper soundnes
OF mind (; Judgment and the will, the
former being the controlling power"
"Imbecility," and think imbecility
Mr.. Hatch, has not been offered to b'
proved in this case
Mr.. Hatch-Not utter imbecility, no
THE CoURT-"Imbecility is that feeble
ness OF mind which, not depriving TIT
/ person entirely Of the use Of his reason
/ leaves the person only with the facult.
OF conceiving ideas OF the most common
sort, and which relate almost always L
! physical wants or habits"
''The question Of the mental capacit
of the deceased is a question OF fact 70
the jury" that is the question that yo
have been on for these eight days.
Your eighth instruction | cannot ia
to come to hereafter, Mr.. Hatch; it vi
make too much repetition to speak OF
now that is, in regard to the day.
NoU tbpsp furt bar instructions a,