The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-25
OPINION OF THE COURT By rREAR, J


This matter was heard IN Cham
bers by a Circuit Judge who admit
ted the will 10 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 verdict Tor the
contestant. The case now comes
here on several exceptions, the only
one of which necessary TO be consld-
cred Is that to the overruliDg 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 prepayment Is
Malaea KeaGa Manaole, widow of the
decedent.
1t is unquestioned law that 1.-The
person desiring TO appeal against the
decision Of the Probate Court, admit
ting the Will TO probate, must claim
and prove priHa fIcis at least, that he
Is an heir-at-law of the decedent,
and would inherit the property IN
yolved. or some interest In 1t, if the
will should finally be refused pro
bate Estate of Bernice Z. Bishop.
3 Haw. 2SS; Estate of G. Brenig, Z
Haw. $40. This Is a condition pre-
requisite to the trial by jury. The
only question here Is, whether prtn'a
f4cis proof of heirship was IN fact
made.
Neither the motion for trial by
iury nor the affidavit accompanying
1t refers to the matter of heirship.
The motion, however, was based on
the records and files herein" as well
as upon the affidavit. The only
papers among the files which relate
TO the question OF helrshlp are: ~
the sworn petition Of the prepayment
containing an allegation that the
contestant Is neice OF the decedent
and that one Kale Ella Willie Mana
ole is his adopted son; % 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
edl as his son and heir; and 81, an
unsworn protest against the probate
of the viii wherein the contestant
states in general terms that she Is
ian heir at law and next OF kin" 10
the decedent Admitting for the
purposes Of this case that the person
desiring to appeal need not show her
beirship herself as by affidavit, but
that she may rely upon the records
and files IN the case, 1t cannot be ser
iousIy contended that her heirship IN
this case Is thus shown even PrlnlG
f1tis. 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
OF the Will. Against these there is
ONLY an unswOrn protest referring to
heirship In general terms without
stating what the relationship Is.
There was no denial of the allegation
IN the petition, or question raised as
TO the validity or effect OF the artl-
cIes OF adoption.
Il may be added that the undis-
puted evidence adduced at the trial
showed that Keolenui was q son and
heir Of the decedent by adoption and
that the contestant was daughter
OF decedent's cousin. The Court
therefore erred IN refusing TO give
the seventh instruction requested by
the propOnert IS follows: You
must find for the propOnent OF the
will. a. the contestant has no right
10 contest the probate Of the will, 1t
having been shown TO you that
Keolsnui is by adoption the legal
heir OF &. 8Isnaole ID case the will
was not sustained"
The exception to the overriding Of
the motion 70 dismiss the appeal -
sustained, the verdict set aside, and
case remanded 10 the Circuit Court
for dismissal Of the appeal.
J. a Tsgoon for prOpOneDt; T. w
Ashford for contestant.