The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-07-27
OPINION OF THE COURT BY FREAR, J.


This matter was heard in Cham
bers by Circuit Judge who admit
ted the will to probate. On appeal
to the Circuit Court by the contest
ant, Elizabeth Harvey, and motion
there for trial by jury, such trial was
had resulting in a verdict for the
contestant. The case now comes
here on several exceptions, the only
one of which necessary to be consid-
cred is that to the overruling of pro-
ponent's motion to dismiss the appeal
On the ground that the contestant
had not shown herself to be an heir
of the decedent. The proponent is
Malaea Kealia Manaole, widow of the
decedent.
1t is unquestioned law that "the
person desiring to appeal against the
decision of the Probate Court, admit
ting the will to probate, must claim
and prove prinad fdcie at least, that he
is an heir-at-law of the decedent,
and would inherit the property in
volved, or some interest in it, if the
will should finally be refused pro-
bate" Estate of Bernice p. Bishop,
5 Haw. 288; Estate of G. Brenig, 7
Haw. $40. This is a condition pre-
requisite to the trial by jury. The
only question here is, whether prima
facie proof of heirship was in fact
made.
Neither the motion for trial by
jury nor the affidavit accompanying
it refers to the matter of heirship.
The motion, however, was based on
the records and files herein" as we'll
as upon the affidavit. The only
papers among the files which relate |
to the question of heirship are: (1) |
the sworn petition of the proponent |
containing an allegation that the |
contestant is neice of the decedent |
and that one Kale Ella Willie Mana
ole is his adopted son; (2) certain
articles of adoption duly legalized |
by justice of the Supreme Court,
bearing the seal of said Court and
duly recorded in the Registry of
Conveyances, whereby the decedent
adopted one Keolanui (the same
person as Kale Ella above mention
ed) as his son and heir; and 81, an
unsworn protest against the probate
of the will wherein the contestant
states in general terms that she is
ian heir at law and next of kin" to
the decedent. Admitting for the
purposes of this case that the person
desiring to appeal need not show her
heirship herself as by affidavit, but
that she may rely upon the records
and files in the case, it cannot be SER
Iously contended that her heirship in
this case is thus shown even prima
iacie That there is a son who would
inherit to her exclusion is shown by
the undisputed articles of adoption
and by the petition for the probate
If the will. Against these there is
only an unsworn protest referring to
leirship in general terms without
stating what the relationship is.
There was no denial of the allegation
n the petition, or question raised as
o the validity or effect of the arti-
lies of adoption.
1t may be added that the undis.
puted evidence adduced at the trial
showed that Keolanui was a son and
heir of the decedent by adoption and
hat the contestant was daughter
If decedent's cousin. The Court
therefore erred in refusing to give
he seventh instruction requested by
he proponent as follows: "You
must find for the proponent of the
will, as the contestant has no right
% contest the probate of the will, it
having been shown to you that
Aeolanui is by adoption the legal
leir of G. Manaole in case the will
vas not sustained"
The exception to the overruling of
he motion to dismiss the appeal is
the verdict set aside, and
,ase remsnded to the Circuit Court
or dismissal of the appeal.
J. A. Magoon for proponent; G. w.
Ashford for contestant.
Honolulu, July IL, 1894.