The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-01-09


case upon of grandchildren the prop
ery would go under clause to their children though both
the wife and the other grandchild still living.
There also the view that the plaintiff might
the theory that the grandchildren
take the fe If rst referred of the
testator the fee would be absolute fee and would
subsuona clause which took effect the cond
happened while if first referred DEATH
the would be defeasbe case also the con-
dition never happened.
We answer the reserved questions as follows:
Ahiona and Naukana acquired by the will of Hkau
fee simple entirety the property this suit
The plaintiff has no interest in the said property.
RENTED Circuit Court for further pro-
eeedngs.
L. A. Dickey for plaintiff.
Kinney, Banou t McClanahan and H. A. Biqeop for de-
PENDANTS.
IN THE SUPREME COURT OF THE TERRITORY OF
SEPTEMBER TERM, 1900
PEKELo AKEAU T. IAKoNA, KAHUE and NoA
KUIKI.
APPEAL CIRCUIT JUDGE FIFTH C1Rou1r
FREAR CD, GALBRA1rH AND PERRY j.
equity ground of fraud set aside decree of
probate admitting probate the alleged fraud
consisting adding
OPINION COURT FREAR CT.
The only question presented this appeal whether
of equity may aside the ground of fraud decree the
probate admitting will probate the alleged fraud
ssing adding the of witness to the will after
the death of the decedent.
The general rule is that equity may relieve against every
species of fraud and may aside annu DEGREES judy
obtained through fraud but that
annu for fraud DEGREES judgments admitting wills probate
exception established almost firmly the rule itself
whether the for the exception good Allen
McPherson II. L. Cas- 49, Case of Brodericks WM 21
Wall. SOB; Ellis Dauis 100 q. S. 1885, Simmons SAUL
1873 q. S. 439; State q. McGlWn 20 Cal. 233; Archer
Meados, 33 Wis 1866; Stoue Stoue No. 594 Wocott
Wocot 140 Mass. 1914. In Barnsley Po,oeu YES ST.
1884, distinction taken between in which the pro-
bate obtained by fraud and in which the will
obtained by fraud and this cited support the
view that equity may aside admitting will pro-
BATE the ground that the probate obtained by fraud
although it would aside such decree the ground
merely that the will itself obtained by fraud How far
such distinction should observed need say. The
actual decision in Bdnesy Po,0eU did that extent
and it be settled that whether the distinction is we'll
not equity will where the alleged fraud in
procuring the probate consists merely conceang the fact that
the will frauduleny obtained See SUPRA parcu
ary Archer Meadoacs, for discussion of Ba,mesey
PoueU.
Counsel rely Wei See o. Yong Sheong, Haw. 1885, and
adams Pake Haw 276 show that the law has been
determined otherwise in these islands In the latter of these
cases. sitting alone equity held merely that he could
inquire into the jurisdiction of probate judge appoint
not licensed auconeer conduct sale but found that the
probate Judge had such Jurisdiction In the other the full
court held that of equity could decree of dis
rbuton of PROBATE and decree distribution itself
where the had withheld part of the estate from his IN
venory and distributed according instructions contained In
letter outside of the will and without the approval Of the court
and where the portion distributed with the approval of the court
had been distributed the absence and without the knowledge