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

revocation of order admitting will to
probate, and for appointment of adj
ministrator.
The petition is based upon alleged
newly discovered evidence of fraud
and forgery. The petitioner is
Junius Kaae, who filed similar petit
ton in this Court in 1890, to which
a former application for revocation
by Kapiolani Wv. and others and a
judgment dismissing it, were plead
ed in bar, which plea in bar was sus-
tanned on appeal by the full Court.
A.A. Haalelea, party in interest,
pleads these last proceedings IN bar
to the present petition, saying "that
in a proceeding heretofore had in
this court in which said Junius Kaae
was party, the identical matter now
set up by said Kaae was litigated
and a judgment rendered against
him."
Although the petitions in both
cases were similar in the complaining
part, charging fraud and forgery in
the production of the will which they
attack, they differ in the statement
of the right of the petitioner to APP
pear in the matter. In the first case
janus Kaae claims as executor of
his deceased wife Kamehaokalani,
who was, as alleged, niece of kelii-
ahonui. In the present proceedings,
he claims as a purchaser of the rights
of kapule whom he alleges to be a
niece and heir of the said Keliiaho.
nui.
1t is difficult to see how, by any
legal principle, Kapule or her grantee
should be estopped by judgment
disposing of the claim of Kamehao-
kaiani. The application of res ud-
,judicdtd to the case would not be
thought of if the two nieces had APP
peared personally in their own inter-
ests; what difference then can it
make that the claim of one was made
by her executor and that of the other
by her grantee, even though the exc
cut and the grantee are one and
the same individual? The matter of
the two petitions is not identical.
1.-The essential conditions under
which the plea of res udjudicata be-
comes applicable, are the identity of
the thing demanded, the identity of
the cause of demand and of the par
ties in the character in which they
are litigants." Herman on Estop.
pei and Res Adjudicata S. 1929
The plea in bar is therefore over
ruled.
A demurrer to the petition is also
filed by the said A. A. Haalelea,
showing for cause of demurrer, |.
That this Court has NJ jurisdiction
at chambers TO set aside upon motion
the judgment admitting said will Of
kealiiahonui to probate.
Z. That said motion does not show
good cause for granting rehearing
upon the probate of the will of ke-
III tldU ~ iOto AOU olubC
the names of the witnesses nor the
nature of the evidence alleged to be
newly discovered.
3. That the petitioner Junius
kaae is estopped by his own iaohes
and the laches of those under whom
he claims from the right of being
further heard upon the matters set
up in his motion,
The counsel for the demurrer
argues That DEGREES in probate have
the same status as other judgments,
as regards fnality and the methods
of questioning them, and conse-
quently may not be reopened except
by proceedings in equity, or by bill
of review. He further contends that
here all probate powers are statutory
and no such power of reconsidering
decree in probate has been confer
red by statHte,
Our law gives to the judges of the
Courts of record power to prove
wills, appoint administrators, to COM
pei administrators and executors TO
perform their duties, and to remove
them. The comforting of this gen
eral authority carries with it all
necessary powers which are incident
to Q Court IF probate. One of these
is the power to revoke a decree adj
hitting will to probate. This is
useful and necessary quality of
Courts of probate and is recognized
as such wherever the common law
has influenced illegal principles and
practice.
Oar own Courts have so construed
the laws giving them jurisdiction In
these matters, and the following
cases extending over nearly the
whole period of our judicial history
show a consistent sentiment in favor
of the existence of this power In our
probate Courts.
Keliipelapela V. Panama, Haw.
282. ID '
In re Paelmuai, id. l4l.
In re Paaluhi (Puhi) id. 1922.
In re Kealiiahonui, 6 id. /, and
id. 1921 of scrap book).
Pupuka v Maiwela, i'd 367.
This view is generally supported
by English and American authorities.
The case of Waters V Stickney q
Allen y, which is leading case on
this question. contains the following
pertinent statement of the law,
Even when will is proved in