The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-03-09

] proved tnaI SuCn lIuuefCe sOpeTdCeu ct
the very time of making the viii, but
| the evidence must be of a very clear
land convincing character. Also. that
a subsequent codicil confirming the
i viii, if not made under undue influence,
makes it immaterial that the will itself
was procured by undue influence, if
such were the fact.
| Undue influence, further, must
amount to fraud or coercion, or the
substitution of another's Will for that
of the testator. Promising the circum-
stances shown by the evidence, the de-
cision holds that it was not error to
tdirect verdict for the proponents. The
will itself was not unnatural and its
provisions We're fully accounted for on
other grounds than the undue influence
of the niece. AT the same time, "a
i Iestator may make even what is some
times called an unnatural Will if he
| does so freely and with sound mind.
'.1Iere suspicion or conjecture of I'M
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
litem for minor benefieiaries; Kinney
& McClanahan for contestants.
DISSENTING OPINION.
Justice Galbraith dissents He
agrees in the main with the rules of
law cited, but disagrees with their ap-
plication by the majority. Quoting the
principles they lay down he says:
These Principles applied to this case
do not justify shading the evidence in
favor of the proponents or taking that
view of it 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 1895, since it 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 1898. 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 it not
more reasonable to infer that the cause
of Charles disfavor with the decedent
arose subsequent to 1897? Was it
caused by Emma 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 1 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 viii and codicils
fails to show any immediate present
influence being exerted to control the
mind and will of the decedent, I can
not overlook the fact that Emma Null
linger, when a girl of thirteen, after a
few weeks acquaintance with her un-
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
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
disposition 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 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 a party elects a 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"