The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-09-23
THE HOLT WILL AND
SOME FINE SPUN
POINTS
NECESSARY TO ADMIT A
LITIGANT BUT NOT TO UPSET
THINGS SUPPOSED TO HAVE
SETTLED YEARS AGO.

The question of whether more than
one Judge of the First Circuit court can
hold court at the same time arose In
cidentally again this morning. Judge
Gear was hearing the demurrer to the
petition of the Hawaiian Trust COM
pany for leave to intervene in the pro-
ceedings for the revocation of the will
of r. w. Holt, admitted to probate in
1862, or there sbouts. The petition set
forth that the Hawaiian Trust Com
pany was the trustee for George A. AL
drich of certain property which was de-
vised by r. w. Holt in the will now at
tackled to Aldrich's mother; that If the
probate of the will is revoked the title
Of the Trust company to the property
will be invalidated. 1t was argued
from this that the Trust company there
fore had a right to come in and be
made party to all proceedings had in
this matter.
In reply to this ana in support of the
demurrer, G. w. Ashford representing
those who are attacking the will, said
that in equity the court by reason of
the constitution of equity proceedings
might allow Intervention; but that this
case was not in equity and therefore
was in law on the probate side of the
court, and that intervention could only
be allowed where there was a statute
authorizing it. and there was no such
statute in Hawaii. Therefore, Ashford
concluded, the court could not allow the
petitioner to intervene, as the court
could not make law.
IF this case is in law, then have no
right to hear it, have I?' asked Judge
Gear, because another Judge is hold
ing court this term"
But it is a matter in chambers" re-
piled Ashford.
1T is not so entitled" replied the
court, "and if it is in law ought it not
to be directed to some term of coLrt?'
Il will change my expression in order
to meet the objection your honor has
suggested" said Ashford, land will say
that as the matter is not in equity, in
tervention can only be allowed by the
court where the statute gives the right
to intervene, and there is no statute in
this case giving such right"
May l ask if there is ANY statCte au-
thorizing your original proceedings"
asked Judge Gear.
There is not" replied Ashford, but
in two cases in the Hawaiian reports to
which l refer your honor it was dis
inctly held to be part of the inherent
power of a court, having jurisdiction to
probate a WILL to revoke the probate
of it in order to correct it's errors, or do
justice in matters not originally called
But suppose the probate of this VIII
is revoked does it not affect all the
property undertaken to be disposed of
by it?" asked the court, land therefore
are not the rights of this petitioner af-
fected, and would he be bound by any
order made in proceeding to which ne
was not a party?'
81 apprehend that the true rule and
test is this: Where the court had juris-
,fgfp tfNts,
or trustees distributed or disposed of
property under this jurisdiction and
with the approval of the court, the re-
vocation of the probate or order of ad-
ministratiOn would not affect any equi-
ties which had accrued or arisen. Pro-
bate proceedings are proceedings in
rem. If the probate of this will is re-
voked it will not affect this petitioner.
But further affirmative orders of the
court giving probate anew to this will
or ordering administration would pro-
badly not bind his petitioner unless he
was a party to the proceedings. But
an order revoking the probate of the
will cannot effect any equities arising
out of the orders of the court assuming
that the court had jurisdiction to pro-
bate the will, which is not questioned
at this time.
Another proposition is that this pc
tition without saying so would have
the court assume that its title to the
property came directly from r. w. Holt
through George A. Aldrich's mother to
Aldrich and then to the Trust company,
or from his mother to the trust COM
pany But it does not say so and for
anything it has pleaded there may be
dozen disinterested parties have held
title between r. w. Holt and George A.
Aldrich, so that 1t is the same as If
this property for which the petitioner is
trustee had come to it's client from an
alien sourse, unconnected with r. w.
Holt or this will the probate of which Is
sought to be revoked"