The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1891-12-09

- @EH'> '-'---'>-n-ss
1920, the Supreme Court Of Rhode
Island held that Che power to revoke
a probate once granted, although
nowhere expressly recognized in the
statutes of that Stale, was just and
necessary power to be implied from
the statute comforting general auth0-
rity to take the probate of wills and
grant administration on the estates
of deceased persons. page 14)
''In face of these authorities IRE
ferring to number of cases. it is
impossible to deny the power of a
court OF probate to approve a subse-
quent will or codicil, @.fter admitting
to probate an earlier will by decree,
the time of appealing from which is
past; or to correct errors arising out
of fraud or mistake in its own de-
crees. This power does not make
the decree of court of probate less
conclusive in any other court or in
any way impair the probate jurisdlc-
ton, but renders that jurisdiction
more complete and effectua, and by
enabling a court of probate to cor
rect mistakes and supply defects in
its own DEGREES, better entities
them to be deemed conclusive upon
other courts page l5.)
AS to the second ground of the de-
murrer,-that the motion does not
state the names of witnesses nor the
nature of the evidence alleged to be
newly discovered, the petition in
this case cannot be regarded as
motion for a new trial under sections
ll55 and six of the Civil Code,
which must be filed within ten DAYS
from verdict or judgment and must
be supported by affidavit of the
alleged newly discovered evidence.
1t does not appear that kapule the
petitioners grantor was ever a party
to any of the former proceedings re-
lating to this estate or has become
bound by any of the DEGREES rem
dered therein; she is then entitled to
be heard, and these proceedings are
so far original in their nature,
although the prayer that the probate
OF the will be revoked, which would
necessarily be preliminary to the
granting of letters of administration,
might perhaps be regarded as in the
nature of motion under the old
proceedings.
1t has not been the practice of our
court to require upon a petition like
this af1idavitS of the names of wit
nesses and the nature of the evil
dence, though it would seem upon
some grounds that such rule would
be desirable.
Such a rule would enable the Court
to consider more advantageously the
question of lacheS-the third ground
of the demurrer. However, as the
petition recites that evidence has
been discovered since January, 1889,
to the effect that the SAID will was
not signed by the deceased or by any
one in his presence or by his request,
knowledge or consent, and was not
attested or SUBSCRIBED in the presence
of the deceased by the pretended
witnesses thereof, it does not seem
that the charge of laches is well sup
ported. ''Delay is immateral as
long as the person delaying does not
know his rights, or is ignorant of the
fact that the trapsaction can be i'm
peached." MAY on Fraud 5l8.)
"'rhe right Of thu party defrauded TO
have The transaction set aside, is not
affected by lapse of time, so long |
as he remains without any fault of |
his own in ignorance of the fraud |
which has been committed" (Kerr |
on Fraud 52.)
1t is not for this Court to consider
questions relating to the present
status of the property of the de-
ceased, and the extent to which it
may or may not be affected by these
proceedings. SucA questions are not
now under consideration.
The demurrer is overruled.
Ashford q Ashford, Hartwell and
Carter for the petitioner,
F. M. Hatch for the pleas.
SANFORD B. DOLE.
HOnOlulu Dec z 1891