The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-06-13
OPINION OF TIKI COURT PR BICkER-
TON. J.

This matter comes here on &.
appeal from the decision OF Mr.. jus
tice Dole overriding the demurrer
and plea fled herein by A. A. Hsa
leles on behalf OF the devisees undel
the Will Of Keslnahouul. The deci-
sion appealed from Is as follows:
The petition Is based upon alleged
newly discovered evidence Of fraud
and forgery. The petitioner j:
Junius ksae, who fled similar
petition in this Court in 1890. tc
which former application for revo
cation by hspiolani w. and others
and judgment dismissiug il, were
plesded IN bar, which plea N bar was
sustained on Ssppesl By the full
Court.
"A A. Hsslelea, a party in interest
pleads these last proceedings in bar
to the present petition, saying that
II proceeding heretofore had in
this Court IN which said Junius
hsse was g party. the identical mat
ter now set up BY said kaae was Iiti-
gated and q judgment rendered
sgzins5 him.
Although the petitions in both
cases we're similar IN the com
planning part, charging fraud and
forgery IN the production of the will
which they stack, they differ in the
statement Of the right Of the petit
toner to appear IN the matter. In
-ba -rcE aa =, T-,,= e. III =
executor of his deceased wife Kane
hsokalsni. who was, as alleged.
niece Of kealiishouui. In the pres
ent proceedings, ne claims as pur-
chaser OF the rights of kspule whom
he alleges to be a niece and heir Of
the said kesliiahonui.
1t Is difficult to see how. by any
legal principle, Kspule or her
grantee should be estopped by
judgment disposing of the claim of
ksmehsokslsni- The application of
reS GGjudje1ta to she case would not
be thought of If the two nieces had
appeared personally in their own IN
terests. what difference then can 1t
make that the claim Of one was made
by her executor and that Of the other
by her grantee, even though the exc
cutor and the grantee are one and
the same individual The matter OF
the two petitions Is not identical. /
The essential conditions under
which the ples OF re- ddjzdicGta 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 ltigsutsn Il Hermann on Es- /
toppel and Res Adjudicsta. :. 102).
The plea il bar IS therefore over /
ruled
4 demurrer to the petition Is also
fled by the said A. A. Hsalelea,
showing for cause of demurrer: l.
That this Court has no Jurisdiction at
chambers to set aside upon motion
he judgment admitting said viii of
Sesliishonui to probate.
2 That said motion does not show
,ood cause for granting a rehearing
lpon the probate Of the viii Of hea-
IN that it does not state the
lsmes Of the witnesses nor the na-
ure of the evidence alleged to be
leEly discovered
8. That the petitioner Junius Ksae
) estopped by his own laches and
y the lsches Of those under whom he
laims from the right of being fur
her heard upon the matter set up in
is motion.
The counsel for the demurrer ar
'ues that DEGREES in probate have the
anne status as other judgments, as
egsrds fnslity and the methods Of
uestioning them, and consequently
nay not be re-opened except by pro
IN equity, or by bill of re- ]
lew. He further contends that here
Il probate powers are statutory, and |
o such power of reconsidering a de
rec in probate has been conferred
? statute
Our laws give the judges Of the !
ourts Of record power to prove wills, l
Dpoint administrators, 10 compel I
administrators and executors to per
I'M their duties, and to remove
hem The conferTing of this gen
rsl authority carries with it all nee 6
sssry powers which are incident to
court Of probate One Of these Is '
le power to revoke a decree admit
ng g viii to probate. This is a use i
i and necessary quality of courts of (
rotate and IS recognized as such I
herever the common law has infu- 8
iced legal principles and practice z
Oar own courts have so construed q
Ie laws giving them jurisdiction in T
Iese matters, and the following Il
Ises, extending over nearly the
hole period of our Judicial history, o
Iow q consistent sentiment in favor q
the existence Of this power in our g
obste courts o
KeIiipelspels vs.. Panama, l HsE- :,
2 &
In re Pseimuai. 3 i'd, al z
In re Pssl1hi lPahi). i'd, 70
In re KeaIiishonui. 6 i'd, l, and a
(321 of scrap book n
Dnnnka y MzfEeIa 6 I'd PSI II