The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-03-11

stances shown by the evidence, the de-
cision holds that 1t was not error to
direct verdict for the proponents. The
will itself was not unnatural and it,
provisions were fully accounted for o.
other grounds than the undue influence
of the niece. At the same time. az
testator may make even what is some.
times called an unnatural will If he
does so freely and with sound mind.
Mere suspicion or conjecture of un-
due influence is insufficient to justify
multiplying an exercise of ones right TO
dispose of his property by will"
Holmes & Stanley and c. Brown for
proponents; G.. A. Davis, guardian ad
Item for minor beneficiares; Kinney
& McClanahan for contestants.
DISSENTING OPINION.
Justice Galbraith dissents He
agrees in the main with the rules of
law cited, but disagrees with their APP
plication. by the majority. Quoting the
principles they lay down he says:
"These rinciples applied to this case
do not justify shading the evidence in
favor of the proponents or taking that
view of 1t most favorable to them. For
instance, these principles do not war
rant the deduction that the son.
Charles, was disinherited on account of
the Hilo Custom House episode-what-
ever that was-in 1885, since 1t is clear
that there was a reconciliation between
him and his father after that, for the
latter invited Charles and his family
to return to the homestead to reside
and they did return there and remain
ed during the greater part of the years
1896, 1897 and 1885, Again in 1897 when
the decedent gave each of his children
and Miss Mullinger five thousand dol
lars, Charles was included and treated
the same as the others. Is 1t not
more reasonable to infer that the cause
of Charles disfavor with the decedent
arose subsequent to 1897? Was it
caused by lnma Danford's dislike for
Charles and by undue influence exerted
by her over decedent or by some other
influence? Whatever the cause may
have been l am not able to say under
the evidence that reasonable men
would agree in their conclusion or at
tribute it to the same cause
The dissenting Justice quotes at
length from the will and reviews the
testimony to show color of a case for
contestants to go to the jury. This
is what he says of the niece's conduct: |
THE FAVORED NIECE.
Notwithstanding the fact that the |
testimony relating to the exact time of |
the execution of the will and codicils |
fails to show any immediate present |
influence being exerted to control the |
M N will Of I |
not overlook the fact that Emma Null
linger, when a girl of thirteen, after a |
few weeks acquaintance with her I'M |
Gle, the decedent, voluntarily left her |
home, father and mother and came to |
this far away land to live with him |
and from that time until his death was |
apparently very much attached to him |
and lost no opportunity to make a |
show of her affection for him, but as |
soon as he was dead permitted his |
body to be taken from her home, where |
he died, and the funeral services to be |
conducted from an undertaker's par
lors; that she had an aversion for |
Charles Motley and his mother and |
that every prediction or threat made |
by her relative to the disposition of de- |
cedents property was verified by the |
terms of the will when published and |
that she had ample opportunity to ex-
ert undue influence over the decedent. |
These with other incidents showing a |
on the part of the decedent |
to yield to the wish of Emma Danford |
in many matters certainly tend to sup
port the theory of the contestants"
In conclusion Justice Galbraith ar
CUES that, while the trial judge has |
the undoubted right to take a cause |
from the jury and to direct a verdict |
in certain cases. this power should be |
exercised with great care and caution. |
Under our system of laws the jury are |
the constituted triers of the facts. |
When party elects trial by jury he |
has the right to demand the judgment
of the jury on the facts. The trial |
judge is frequently called upon to act |
upon the spur of the moment. without |
sufficient opportunity to analyze or
consider the testimony"