The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-23

error would be HemedileSS 80 lar as the
property OF the testator was concerned,
il having been delivered to the deYisee.
(2). Amy person "aggrieved" may apply
for writ OF error.
OPINION OF The COURT BY JUDD, C. j.
This is a writ of error to review
and correct certain alleged errors Of
law in the charge of the Circuit
Judge to the jury on an appeal from
the Probate Court to the jury, the
issue being the competency OF one
Charlotte Adams, to make the will in
question. The will was admitted to
probate on the petition of j. o.
Carter who was the Executor therein
named. Mr.. Carter in his petition
prayed that the will be admitted to
probate and "that letters testament
tary be issued to some person to be
named by the Honorable Court" and
on the will being proved and the an
nouncement made in open Court
that Mr.. Carter would renounce the
appointment as Executor, the Court
appointed, on nomination of the de
visee, MIR. Charles Lucas. This was
on the Sd of November, 1893. The
will was contested and finally carried
to q Jury and q verdict sustaining the
probate was rendered May oath, 1894.
Exceptions were taken and q motion
for a new trial filed but not argued.
On the 10th July MIR. Lucas, admin
istrator, by his counsel moved that
the motion for q new trial be heard
and disposed OF on the 18th, and on
that day the motion was heard and
overruled. Later the parties by
counsel stipulated that the contest
ants should have until 1st September,
1894 to have the bill OF exceptions
allowed. This was not done. Mean
while the Administrator had settled
the estate, paid the liabilities, fled
his accounts, and, pursuant to pub
lished notice OF hearing, on the 9Th
Of November, 1894, the day set, the
accounts were allowed and MIR. Lucas
discharged from all further RESPONSE
bility as administrator and his bond
cancelled, having delivered the re-
naming property to the deVlsee
named.
On the oath November the con-
testant Anna Phelps filed her petit
ion for a Writ of Error, which was
served upon j. D. Carter as defend
ant in error. At the December Term
of this Court a motion to quash the
writ was made upon the following
grounds:
Q.) That there are other parties in
interest besides plaintiff in error.
(2) That the writ of error was
not issued within six months from
the rendition of the Judgment COM
planned of.
(3l. That j. o. Carter is not a
party to the proceedings, having re-
nounced the Executorship of the
Will in question but that Charles
Lucas was the administrator with
the will annexed and was the pro-
ponent of the will at the May Term,
1894.
az That the judgment complain
ed of was fully satisfied and executed
previous to the issuance of the writ.
(5.) That the matters set forth
and alleged as error are not legal
grounds upon which the writ should
issue.
(6) That no bond was filed by
plaintiff in error to pay the jUdg-
ment in case of failure to sustain the
writ.
We override the first ground of
the motion to quash. We think the
statute, Chap. 95, Laws of 1892, de-
filming Writs of Error allows any
party "aggrieved" to sue out such q
writ and it is not essential that all
the parties who contested the Pro-
bate of the will should be Joined as
petitioners for the Writ
We think the motion to quash
should be sustained upon the third
ground. The proper party to be
served with the copy of the assign
ment of errors, as defendant in error,
was Charles Lucas. He was the
representative of the estate. Mr..
Carter, the Executor named, had re-
fused to accept the trust. The issue
before the jury on appeal from the
Probate Court was between Mr..
Lucas and the contestant. This
point is sufficient upon which to dis
miss the proceedings. But an
snal7sis of the statute on Writs of
raises serious doubts whether
will lie to correct proceedings
OF this nature. The statute says:
Sec. 1, that the writ may be had sat
any time before execution thereon is
tully satisfied, within six months
from the rendition of Judgment"
But in our case the verdict of the
Jury rendered no judgment sounding
IN damages upon which execution
COnld ISGno md ha eo4;.Eol G. H.