The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-06-08
srcKERTox AND DOLE, IL, (JuDD, c. J.,
BEING DISQUALIFIED.
OPINION OF THE COURT PER BIcKER-
TON, J.

tice Dole overriding the demurrer
and plea filed herein by a. A. Haa-
lelea on behalf of the devisees under
the will of Kealiiahonui. The deci-
sion appealed from is as follows:
"The petition is based upon alleged
newly discovered evidence of fraud
and forgery. The petitioner is
Junius Kaae, who filed a similar
petition in this Court In 1890, to
which former application for revo-
cation by Kapiolani (w.) and others
and q Judgment dismissing it, were
pleaded in bar, which plea in bar was
sustained on appeal by the full
Court.
ga A Haalelea, party In interest
pleads these last proceedings IN bar
to the present petition, saying "that
in a proceeding heretofore had IN
this Court in which said Junius
Kaae was a party, the identical mat
ter now set up by said Kaae was liti-
gated and a judgment rendered
against him"
Although the petitions in both
cases were similar in the COM
planning part, charging fraud and
forgery in the production of the will
which they attack, they differ in the
statement of the right of the peti
toner to appear in the matter. In
the first case Junius Kaae claims as
executor of his deceased wife Kane
haokalani, who was, as alleged, a
niece of Eealiiahonui. In the pres
emit proceedings, he claims as a pur
chaser of the rights of Kapule whom
he oil IN ha mr. r
the said Kealiiahonui.
1t Is difficult to see how, by any
legal principle, Kapule or her
grantee should be estopped by a
Judgment disposing of the claim of
Kamehaokalani. The application of
res adjudieata to the case would not
be thought of if the two nieces had
appeared personally in their own in
terests; what difference then can it
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 plea of res adjudicatG 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 lItigants." q Hermann on E5-
topped and Res Adjudicata, s. 1922.
The plea in bar is therefore over
ruled.
A demurrer to the petition is also
filed by the said A. A. Haalelea,
showing for cause OF demurrer: i.
That this Court has no jurisdiction at
chambers to set aside upon motion
the Judgment admitting said will of
Kesliiehonui to probate.
2. That said motion does not show
good cause for granting a rehearing
upon the probate of the will of Eea-
liiahonui, in that it does not state the
names of the witnesses nor the ma
ture of the evidence alleged to be
newly discovered.
3. That the petitioner Junius Kaae
is estopped by his own laches and
by the laches of those under whom he
claims from the right of being fur
ther heard upon the matter set up in
his motion.
The counsel for the demurrer ar
CUES that DEGREES in probate have the
same status as other judgments, as
regards fnality and the methods of
questioning them, and consequently
may not be re-opened except by pro-
ceedings IN equity, or by a bill of re-
view. He further contends that here
all probate powers are statutory, and
no such power OF reconsidering a de
cree in probate has been conferred
by statute.
Our laws gives the judges of the
courts OF record power to prove wills,
appoint administrators, to compel
administrators and executors to per
form their duties, and to remove
them The comforting of this gen.
eral authority carries with it all nee
essary powers which are incident to
a court Of probate. One of these is
the power to revoke decree admit
ting a will to probate. This is use
ful and necessary quality of courts of
probate and Is recognized as such
wherever the common law has infiu-
enced legal principles and practice.
Our Own courts have so construed
the laws given them jurisdiction in
these matters, and the following
cases, extending over nearly the
whole period of our judicial history,
show consistent sentiment in favor
of the existence of this power in our
probate courts
Keliipelapela VS.. Panama, Haw..
282.
In re Paeimuai. i'd, al.
In re Paaluhi (Puhi), i'd, 722.
In re Kealiiahonui, 6 i'd, /, and s
Id. (321 of scrap book.
Pupuka VS.. MAXWELL, 6 i'd, 367.
This view is generally supported
by English aud American authorities.
The case of Waters vs.. Stickney II
Allen. y, which is leading case on
this question, contains the following
pertinent statement of the law:
Even when a will is proved in
solemn form, it is within the iuris-
diction OF the court, for sufficient
cause shown, to revoke the probate
The English authorities recognize as
suthclent causes of revocation. for
gerry of the will, fraud in obtaining
probate, neglect or mismanaoemanf
in conducting the suit, or the nro.
duction of later will" page IL