The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-12-07

This is a motion for a new trial
on the ground that the verdict of
the jury was contrary to the law
and the evidence.
The admitted facts of the case
are, that a document purporting to
be the will of one Kamaka was adj
mitted to probate by the Circuit
Judge of Maui on the 4th of Aug
ust, 1891. From this an appeal
was taken to the Circuit Court with
jury. The case came to trial on
the 10Th of June, 1892, upon the
issue whether it was a valid will,
the contestants claiming that the
signature of only one subscribing
witness had been proved, namely,
that of J. T. Cover and that the
alleged other subscribing witness,
Nika, could not write and there
fore his signature was a forgery.
The will is dated the 7th of July,
1868. Kamaka the testator died
on the 18th of March, 1887.
The verdict of the jury was for
the contestants, thus setting aside
the probate of the will. One of
the contestants is the daughter of
Kukaulalii son of the testator,
and who was appointed executor
in the alleged will.
From the transcript of the evil
dence sent up, we find that both
w. B. Keanu, proponent, and his
wife gave evidence that both Mr..
Cover and Nika signed their names
as subscribing witnesses to the will
in the presence of the testator. Mrs.
Keanu says: "Mr. Cover and Nika
were the witnesses. [ saw those
two witnesses sign their names
and they signed this, each one
signing his own name" Against
this is the testimony of Kamanu
and Paaoao, that Nika was
Paaoao's uncle and that he could
not write. Kamanu says Nika
could not write, because on the
9th of November, 1875, he signed
deed conveying land to Paaoao
by a cross mark, and said that he
could not write. The will itself
contains intrinsic evidence that it
was signed by both the witnesses,
Cover and Nika. It is proved to
be in the handwriting of the late
Rev. w. P. Alexander, who was
present when the will was exc.
cuted, and the attesting clause
also in Mr.. Alexander's hand
writing, recites that "Kamaka exc
cuted this last will written on ont
sheet of paper on the day men
toned above, declaring that it wa
his last will in the presence of u
two (maua) and at his request W.
(maua) have signed our names a
witnesses and we have signed il
his presence and in the presence o
each other" Then follows 81. 7
Cover living at Waikiki, Nix
living at Wailuku." These tw
names are bracketed together wit
J the words "Na hoike" (the wit
nesses) ouside of the bracket. TIL
signature of Mr.. Cover was prove
by independent testimony.
We think that the presumptio
! thus raised that Nika witnesse
/ this will at the same. time wit
, Mr.. Cover, coupled with the pos
3 tive testimony that he did so sigr
l is not overcome by the testimon
r by the contestants, that Nika coul
9 not write. He was an old man an
8 his signature indicates that /
3 could write very imperfectly. 1t
not unusual among aged Hawai-
ans to shrink from signing the
names or to decline to do so fro
pride, Hest their ignorance should
n disclosed by an abortive attempt
e make a readable signature. Many O
l. Hawaiians were taught to write on
It their names and from disuse
e this requirement, failing eyesig
d or the infirmities of age, it mig
y be actually impossible for them
l. make their signatures. Nika's de-
TT offered in evidence was executed
t. a cross-mark, seven years and
n half after the date of the wi
r There is no proof that he could n
IS write at the date of the will.
rs We think that the jury mt
re have been led to their verdict
OF improper motives and therefore
Te aside their verdict and order a n
at trial.
s c. Creighton and J. Richardson
g proponent.
A. Rosa and J. w. Kalua for CT
testants.
20 Honolulu, December 2, 1892.