The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-08-26
NO PROBATE
COURT HERE
Point Decided in
the Parker
Case.
CFrom Thursdays Advertiser.)


amended petition of ]. S. Low, as next
to remove A. W. Carter as guardian.
The guardian is given five davs in which
I to answer the complaint. In his con-
! cusion the Judge says
at seems to me that here, as in
Florida and New JERSEY. where the
statute prescribes no particular mode of
procedure no such nicely in pleading
is required as is required in bill i'll
equity"
The first question considered was that
of jurisdiction, the demurrer having OBJ
jected that the petition and motion pur-
ported to be brought before Circuit
Judge sitting in probate and that no
Judge or Court of the First Circuit sit
ting in probate had jurisdiction to re-
move a guardian; also that proceed
ing before a Judge sitting in probate TO
remove guardian is an improper pro-
,ceeding in that the proper method OF
procedure for the removal of guardians
is before Judge sitting in equity"
Stating the case the court says:
"The claim of counsel for the guard
ian is that, the Legislature of 1903 hav-
ling by Act 10 of the Session Laws of
1908 amended the Act relating to guard
I ians and wards, by striking from the
I various sections OF that Act the words
'of probate and court wherever they
occur and by inserting in lieu of the
word court where so stricken out the
word Judge the jurisdiction of the
Probate Court over guardians and wards
is thereby taken away.
Counsel have cited many cases to the
effect that probate courts are courts OF
statutory and limited jurisdiction and
p,,lI tIa
them by statute They contend that, as
the statute has been amended by strik-
ing out all reference to the Probate
Judge and the Probate Court the
jurisdiction over guardians and wards
reverts to the court of chancery. and
that now chancery alone has jurisdic-
ton
Judge Gear considers the jurisdiction
conferred upon the probate court before
fhe amendment of the statute, "for the
statute did not of itself create or confer
( jurisdiction upon such court unless by
Implication if that were possible" He
( finds that before the passage of the Or
, ganc Act the Legislature established in
each OF the Judicial Circuits court
styled the Circuit Court, giving all such
courts and their judges a variety of
powers, among others TO grant probate
of wills, to appoint administrators and
guardians" etc. jon which he says:
81 have been unable to find any statute
which either creates or confers JuriSdic-
ton on any court known as the Probate
Court or any Judge styled the probate
Judge On the contrary, jurisdiction OF
all matters, which in over forty of the
States is conferred on probate courts, is
given 10 the Judges of the several Cir
cult Courts who have power at cham
bers' to hear and determine such mat
tiers.
CURIOUS SITUATION.
q have been greatly surprised to find
this condition OF things, as many ques-
tions have been heretofore submitted for
decision which involved the determine
ton as to whether or not the so-called
Probate Court or Court of Equity
had jurisdiction in the premises. The
courts have heretofore proceeded upon
the assumption that there was a court OF
probate here and this has never been
questioned up to the present time so far
as | know. That this should continue
is not matter of sNrprise. for many of
the statutes have referred to the Pro
bate Judge and Probate Court
Some of these statutes are quoted
also many Supreme Court decisions i'll
winch the same ttTlllS are uScu' JuuSS
Gear then proceeds to remark:
But now that the jurisdiction OF the
Probate Court is asserted to have been
lost by this amendment to the statute in
question, the question OF the establish
ment' and the very existence OF such a
court is necessarily involved, for If there
had been and is a Probate Court then
the amendment to the statute becomes
OF great Importance. The existence OF
such court, however, cannot be proved
by mere reference to it in statute or a
decision OF the Supreme Court There
must be a statute creating such court
and comforting jurisdiction upon it be-
fore il can be judciallv determined that
the passage OF a statute has deprived it |
of jurisdiction over anv matter. This
! have been unable to find and counsel, |
at the request of the court. failed to
point il out The only statute confer |
ring jurisdiction over the matters in
question gives the jurisdiction TO the |
Judges OF the several Circuit Courts at
chambers"
NO PROBATE COURT.
The decision Celebrates the foregoing |
proposition to show that, without pro- |
bate Judges or courts, the Circuit Judges |
are fully empowered To hear and deter
mine all matters OF probate II IS mem
toned that there Is no equity division |
any more than there is probate diyls-
ION IN our judiciary system. prior 10 |
the passage Of The amendment 10 the
statute relating lo guardian the Judge /
says, 'it was lhc same Judge who Was
glyen on, jurisdiction 90 hear equity
matter ihil heard probate matters, I'm
dor ,hC statute as h sluni AM proceedings |
Nrr pIpyrh hwusm before Ne Judge |
III th, lIuHU luW aui should have |
blw addressed u hW lpigl the Nsi.
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