The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-06-13


I TINS question. contsiuS tue fol!owin.
T pertinent elatenent Of the law.
Even hen q viii Is proved /,
I solemn form, It i within the inris-
dletiOu Of the court, for suficien
/ cause shown, 10 revoke the PROBATE
I The English authorities recognize s:
sufficient cSuses OF revocation. for
! gerry Of the VIII, fraud in obtaining
( probate. neglect or misnansSemenl
IN conducting the suit. or the pro
duction OF lster will page a.
In Bowen Us. johnson IS Il. I.
1890, the Supreme Court Of Rhode
Island held that the power to revoke
a probSte once granted. although
nowhere expressly recognized IN the
statutes Of that state, was Just and
necessary power to be implied from
the statute comforting general su-
thority 10 take the probate of wills
and grant administration on the
estates Of deceased persons page
IA.
in face Of these authorities ire
ferring to 8 number of cases) it is
impossible to deny the power of s
court Of probate to approve a subse-
quent will or eedicil, after admitting
to probate an earlier Will by decree,
the time Of appealing from which is
past; or 70 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 iurisdie-
ton, but renders that jurisdiction
more complete and effectual, and
by enabling a court of probste to
correct mistakes and supply defects
IN Its own DEGREES, better entities
then to be deemed conclusive upon
other courts" Page Isl
As 70 the second ground of the
demurrer-thst 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 q
motion for 8 new trial under Sections
1155 and II56 Of the Civil Code.
which must be fled within ten days
from verdict or judgment, and must
be supported by affidavit of the al
legged wly-discovered evidence.
II does not appear that Kapule,
the petitioners grsntor, was ever
party to any of the former proceed
lngs 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
iure, although the prayer that the |
probate of the will be revoked, which |
would necessarily be preliminary to
he granting of letters of sdministra-
ion, might perhaps be regarded as
n the nature Of motion under the
I'D proceedings.
1t has not been the practice of our
,ourt to require upon petition like
his sffdsvlts of the names of wit
lesses and the nature of the evidence,
hough it would seem upon some
rounds that such q rule would be
Such a rule would enable the
curt to consider more advantage
usly the question of laches-the
bird ground of the demurrer. How
yer, as the petition recites that evil
lence has been discovered since
snusry, 1889, to the effect that the
aid Will was not signed by the de-
essed or by anyone in his presence,
T by his request, knowledge or con-
ent, and was not attested or sub
cribed in the presence of the de-
sssed by the pretended witnesses
hereof, it does not seem that the
barge OF lsches Is well supported.
Delay is immsterisl as long as the
erson delaying does not know his
ghts, or is ignorant of the fact that
lie transaction can be impeached.n :
lay on Fraud, 5I8.) "The right of
lie party demanded to have the
snssetion set aside is not affected
? lapse Of time so long as he re-
aims without any fault of his own
ignorance of the fraud which has
zen committed" (Kerr on Fraud, ]
y
1t is not for this court to consider
lestions relating to the present
atus of the property Of the de-
ased, and the extent to which it L
ay or may not be affected by these a
'ocsedings- Such questions are not .
w under consideration.
The demurrer is overruled-7 b
BIZ The CoUzT: /,
The above decision sets out the
Sc in full, with the plea ia bar and
e grounds Of demurrer. We are of "
G opinion that the decision on the n
ea in bar and the grounds set out =
the demurrer should be sustained, =
d We adopt it as the opinion of Il
Is Court But a new point has O.
en- raised BY the respondent, viz, =
That petitioner under the deed I
itch he sets forth took no right to d
sintsin this proceeding. 1t amounts o.
erely to the assignment of a chose
action, viz, the right to attack a a