The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-11
oprs1os OF THE COURT BY FREAE.

OPINION OF THE COURT BY FREAR. J.
To February, 1893, a 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 estate of the de
cedeDt, and ordered distribution of
the estate, and a discharge Of the
administrator, upon his delivering to
Mrs. q. II. Banning s"d Mr.. 3 r.
Banning, the legatees named In the
will. each one half of the estate re-
-maiLiDg In his hands, aud fling
receipts for the same-which was
accordingly done. Afterwards the
legatees filed petition, alleging that
the order of distribution aud dis
charge was made under a mistake az
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 dr. ing her
life), and that the receipt hitch. it
is claimed, cover certai; ;afe in
yestments made by the .dminis
traitor, were obtained by him
through Misrepresentation, conceal.
ment, and undue influence, epd
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 III full. The
order was revoked on the ground OF
mistake, and 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 be had paid to Mr.. Banning,
holding that be, Mr Banning, was
estopped from saying that he had
not selected and accepted the monies
and securities represented by his re
ceipt. MIR. Banning then appealed
to the Circuit Court and there moved
that the issues of undue influence,
misrepresentation, concealment and
estoppel be tried by II jury. The
Court denied the motion, ruling
that the appeal was not we'll taken,
on the grounds that the order ap
pealed from was only interlocutory,
and that the issues were not such as
entitled the appellant to trial by
jury under ths provisions OF the Act
,Qf-I04, $50 Authorize the frying q af i
Issues of Fact In Matters of Probate |
and Administration by Jury" The |
case c'mes to us upon exceptions to |
this ruling of the Circuit Court.
Whether the issues in this case are |
such as eptitle 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. 124D In the matter of
the Estate of Il. Metcalf. 3 Haw. GA,
the Court said, after quoting the
preamble and first section of the Act
of 1864, which need not he repeated
here: The Section 1241 Of the
Civil Code. therefore, remains in
full force, except 80. 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
ike. This was the intention of the
Act. It has never been held or sup
posed to have any other application, ,
and the settlement of estates would |
De intermiuable If every order OF a
Judge liz the progress IF administra ,
ion might be appealed to jury, by :
avery one who may think they had
an interest in the estate, or by every
me. who, having an interest In the
state, might see fit, when prompted
" a l.tigIous spirit, or by i'll temper
to take an appeal to jury.
3y examining the affidavit it Is APP 8
parent that there is no fact at issue I
egardipg the validity OF the will Of !
,Ir- Metcalf or the descent OF the I
property, and on this ground alone, =,
r this were only one, the motion !
INST be denied. But by reading over
he allegations of the issue of facts In
IA affidavit, it will be found that not t
le of them CONTAINS any allegation @
a fact upon which a jury can De s
lied to give a verdict" C
1t is cOntended, however, that SO r
uch of this opinion as relates to the +
obstruction of the Act OF 1864, limit :
10 the right of trial by jury in pro .
ale matters to issues touching the
slidity\ OF will or the descent OF G
ronertv, was a mere O5iter dictun', u
"a, much as the Court was not OBJ 8
o,d to decide that point, since 1t 6
Ed that the issues raised were not o
mes of fact at all, but issues of e
'w There is considerable difference a
: opinion as to what are and what !,
"a not O5iter dieta, and as to what +
.eiobt and respect should be given 4
, former opinions of Court IN G
eneral. On principle 1t would seem
nat an opinion expressed after Que II
onsideration upon point closely tt
,npected With, or apparently n
,ough not necessarily In fact IN C,
,lyed in a case, should be re- a.
,ected moro than an OPINION a
Tnressed after but little consld- -
alton upon a point clearly In Is -,
70. On the other hand, decision " "
wen with or without full considera u
ON upon point actually in issue, -
ov he and often is reversed by e'