The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-06-08

/ statutes OF tndJ Stdte. WAS just anu
necessary power TO be implied from
the statute conferring general au-
thority 70 take the probate of wills
and grant administration on 'he
estates of deceased persons'" page
14.
''In face of these authorities ire
ferring to a number of cases) it is
impossible TO deny the power Of a
court of probate TO approve subse-
quent will or codicil, after admitting
10 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 a court of probate less
| conclusive in any other court, or in
any way impair the probate jurisdic-
ton, but renders that jurisdiction
more complete and effectual, and
by enabling a court of probate to
correct mistakes and supply defects
In its own DEGREES, better entities
them to be deemed conclusive upon
other courts" Page Is
As to the second ground of the
demurrer-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 a
motion for new trial under Sections
1155 and 1156 of the Civil Code,
which must be filed within ten days
from verdict or judgment, and must
be supported by affidavit of the al
legged newly discovered evidence.
It does not appear that Kapule,
the petitioners grantor, was ever a
party to any of the former proceed
ings relating to this estate, or has
become bound by any of the DEGREES
rendered therein she IS then en-
titled to be heard, and these proceed
ings are so far original In their ma
ture, although the prayer that the
probate of the will be revoked, which
would necessarily be preliminary to
the granting of letters of administra-
ton, might perhaps be regarded as
in the nature of motion under the
old proceedings.
It has not been the practice of our
court to require upon petition like
this afidavIts of the names of wit
nesses and the nature of the evidence,
though it would seem upon some
grounds that such a rule would be
desirable.
Such a rule would enable to the
court to consider more advantage
ousIy the question of laches-the
third ground of the demurrer. How
ever, as the petition recites that evi-
dence has been discovered since
January, 1889, to the effect that the
said will was not signed by the de-
ceased or by anyone in his presence,
or by his request, knowledge or con-
sent, and was not attested or sub
scribed in the presence of the de-
ceased by the pretended witnesses
thereof, it does not seem that the
charge of laches is we'll supported.
"Delay is immaterial as long as the
person delaying does not know his
rights, or is ignorant of the fact that
the transaction can be impeached."
May on Fraud, 518) "The right of
the party defrauded to have the
transaction set aside is not affected
by lapse of time so long as he re-
mains without any fault of his own
in ignorance of the fraud which has
been committed" (Kerr on Fraud,
52)
It 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. Such que,tions are not
now under consideration.
The demurrer is overrnled."
By THE COURT:
The above decision sets out the
case in full, with the plea in bar and
the grounds of demurrer. We are of
the opinion that the decision on the
plea In bar and the grounds set out
In the demurrer should be sustained,
and we adopt it as the opinion of
this Court. But new point has
been raised by the respondent, viz,
"That petitioner under the deed
which he sets forth took no right to
maintain this proceeding. 1t amounts
merely to the assignment of chose
in action, viz, the right to attack a
Judgment for an alleged fraud, and
that a right of this kind cannot be
assigned"
In Anderson's Dictionary of Law,
we find the following:
"The general definition of chose
in action is right not reduced into
possession; a note bond, or other
promise not negotiable is denomin-
ated a chose in action, before the
promisor or obligor is liable to an
action on it, as well as after. A note
for money payable on time is chose
in action as soon as made"
1.-The term chose in action is one
of comprehensive import. 1t includes
the infinite variety of contract coven-
ants and promises which confer on
one party the right to recover a per-
sonal chsttel or a sum of money from
another by action. A debt secured by
bond and mortgage is an example"
In its enlarged sense a chose in
action may be considered as any
right to damages, whether arising
from the commission of a tort, the
omission of duty, or the breach of
a contract"
In Bouvier's Law Dictionary we
find the following definition:
"'Chose in action,'" a right to re-
ceive or recover debt or money, or
damages for breach of contract, OF