The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-10-17

OPINION OF THE COURT BY FREAR. J.
In February, 1898, Judge of the
Circuit Court of the First Circuit
sitting in probate allowed the &C
counts of the administrator with the
will annexed of the state of the de-
cedent, and ordered distribution of
the estate, and a discharge of the
administrator, upon his delivering to
Mrs. c. H. Banning aud MIR. B. r.
Banning, the legatees named IN the
will, each one half of the estate re-
naming in his hands, and filing
receipts for the ssme-which was
accordingly done. Afterwards the
legatees fled a petition, alleging that
the order of distribution and dis
charge was made under mistake as
to the estate given Mrs. Banning by
the will (which provided that only
the income of one half of the estate
should be paid to her during her
lifel, and that the receipts, which, it
is claimed, cover certain unsafe In
vestments made by the admins
traitor, we're obtained by him
through Misrepresentation, conceal
ment. and undue influence. and
that the administrator had not
filed full accounts, and praying that
the order of allowance of accounts
and discharged be revoked and that
the administrator be required forth
with to file his accounts in full. The
order was revoked on the ground OF
mistake, aud the administrator was
ordered to file his accounts, but the
Judge found that there had been no
undue influence, misrepresentation
or concealment, and ordered that in
making his accounts the admins
traitor might credit himself with
what he had paid to MIR. Banning,
holding that he, Mr.. Banning, was
estopped from saying that he had
not selected and accepted the monies
and securities represented by his re-
ceipt. Mr.. Banning then appealed
to the Circuit Court and there moved
that the issues of undue influence,
Misrepresentation, concealment and
estoppel be tried by jury. The
Court denied the motion, ruling
that the appeal was not we'll taken,
on the grounds that the order sp-
pealed from was only interlocutory,
and that the issues were not such as
entitled the appellant to trial by
jury under the provisions OF the Act
of 1854, ''To Authorize the Trying of
Issues of Fact in Matters of Probate
and Administration by Jury" The
case comes to Us upon exceptions to
this ruling of the Circuit Court.
Whether the issues in this case are
such as entitle the appellant to a
trial by jury, depends upon whether
the Act of 1864 allows trial by jury
of any issue of fact or only of issues
touching the validity of will OF the
descent of property. Prior to the
enactment of this Act, all matters of
probate and administration were
heard and determined, whether in
the first instance or on appeal, with
out the intervention of jury. (Civ.
Code, Sec. 1241). In the matter OF
the Estate of 7. Metcalf, 8 Haw. 614,
the Court said, after quoting the
preamble and first section of the Act
of 1854, which need not be repeated
here: "The Section 1241 of the
Civil Code, therefore, remains in
full force, except so far as the
last cited Act has modified it, and this
Act only applies to the validity of a
will or testamentary devise, or facts
touching the descent of property
for instance lineage, adoption, or the
like. This was the intention of the
Act. 1t has never been held or sup
posed to have any other application,
and the settlement OF estates would
be interminable if every order OF a
Judge in the progress of administra-
ton might be appealed to a jury, by
every one who may think they had
an interest in the estate, or by every
one, who, having an interest in the
estate, might see fit, when prompted
by litigious spirit, or by i'll temper
generally, to take an appeal to a jury.
| By examining the affidavit it is ap-
parent that there is no fact at issue
regarding the validity of the will of
Mr.. Metcalf or the descent of the
property, and on this ground alone,
| if this were only one, the motion
must be denied. But by reading over
the allegations of the issue of facts in
the affidavit, it will be found that not
one of them contains any allegation
of fact upon which jury can be
called to give a verdict"
1t is contended, however, that SO
much of this opinion as relates to the
construction of the Act of 1854, limit
ing the right of trial by jury in pro
bate matters to issues touching the
validity of will or the descent OF
property, was a mere obiter dietRna,
inasmuch as the Court was not OBJ
liged to decide that point, since it
held that the issues raised we're not
issues of fact at all, but issues OF
law. There is considerable difference
of opinion as to what are and what
are not ObiteT dicta, and as to what
weight and respect should be given
Il 80 o-,,-,sor,- of q Nnurf IN