The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1904-03-11
SUPREME COURT HOLDS
MOTLEY WILL IS
VALID

By a majority decision of the SUI
preme Court, written by Chief Justice
| Frear and signed by Justice Perry with
the author the Motley Will contest falls
| to the ground. The last will and tesla
ment of Charles Motley was admitted
| to probate by Judge Little of the
Fourth Circuit. An appeal was taken
| to the Circuit Court and jury by the
| four children of decedent, his widow
| electing to take dover instead of fur
Their contesting the will. Judge Robin
son of the First Circuit went to Hilo
| to preside at the trial of the appeal,
and at a certain stage of the trial
granted a motion to direct a verdict
| for the proponents of the will. An APP
peal from this ruling was taken to the
Supreme Court, with the result already
stated. The ground of contest was that
of undue influence by the decedent's
niece, Mrs. Emma Danford, nee Null
linger.
Following is the story of the will, the
estate being valued at 100000:
TERMS OF WILL.
"Mr. Motley had lived on the island
of Hawaii half century. He success
sively herded sheep, kept a store and
tannery and cultivated sugar cane, and
| finally his property became of consid-
cradle value. He early took an Ha-
| waiian wife, by whom he had a number
| of children, of whom four survived him.
In 1885 he visited England, his native
land, and brought back with him his
niece, Emma Mullinger, then a child of
about thirteen years, whom he brought
| up as a daughter. In October, 1898,
Emma married and moved to Honolulu.
| The will was executed May IS, 1899; the
| first codicil, August 2, 1900, and the
| third codicil April IL, 1902 Mr.. Motley
| died May 2 1902.
The will gave $1,000 to a Miss Bar
nard, who had lived at the Motley home
| for time; $500 to the decedent'S broth
er in England. with a gift of the same
| by way of substitution to the brothers.
wife and granddaughter successfully;
$500 to Emma Mullinger's father in En-
gland: the homestead, furniture, etc,
| on Hawaii to decedent's son David:
| the proceeds of an insurance policy in
equal shares to his wife, his children,
William, Maria and David, and his
niece Emma; the residue of the estate
| to the executors in trust to pay the in
come thereof in equal parts to the wife,
the said three children and Emma re-
spectively, for their lives, and the
children of the remaining son Charles,
with various provisions by way of sub
stitution, remainders, payment to the
| children of Charles upon their arrival
at certain ages, freedom from the con-
| troll of their husbands in the cases OF
| Maria-and Emma. etc, and finally, on
| the termination of all the life estates
the corpus was to be divided equally
among the heirs of the three children
the niece and the children of the re-
naming son Charles. Thos. II. Walker
and Anthony Lidgate We're appointed
executors and trustees. The first codicil
substituted Cecil Brown as executor
and trustee in place of Mr.. Walker
who had left the Territory, and ex-
pressly confirmed the will in all other
respects, The second codicil gave the
homestead furniture, etc. to Emma in
place of David, with proviso that the
wife should have the use of cottage
on the premises, with It's furniture, for
life, and expressly confirmed the will In
other respects
LAW EXPOUNDED.
| In It's syllabus, the decisloin holds that
| Tin deciding the question whether there
Is sufficient evidence of undue influence
| In the making OF Will TO go 10 the
| jury the evidence must be considered
In the light most favorable To the con-
| testants," Also, there must be boti
insuniciency Of evidence and absence oI
material absence 10 justify the direction
OF verdict for the proponents, la The
body Of the decision the supreme courI
Indicates It's satisfaction that the court
below WAS 80 Justified,
II II held that, In order 90 set aside
a will for undue Influence, u must be-
proved that such Influence operated al
the very time ~ making the viii, bal
the evidence must be- Of "A very clear
ana convincing character Also, that
"A subsequent e0dloil confirming ~,
viii, ~ mol made under undue influence
mAkeH u lmmAisrlal that the Will itaell
aAH procured by undue influence, u
such Aers The fact
Undue inHuenfr fufiher mus
amount 10 fraud az raffplnn, 90 ih,
substitution af an9lhara Nill far thai
III tbs lsslaiof Promising tho eifeuin