The Hawaiian gazette., 1908-12-11
A NICE POINT
IN SC|RE FAC|AS
(From Thursday,s Advertiser.l

(rrOm thursday 8 AuNertlSer)
Judge De Bolt yesterday fled writ
ten opinion on a rather interesting
question of law, 1t was in the case
of Oriental Life Insurance Company
against c. Winam and Others. In the
opinion Judge De Bolt says:
Plaintiff, on November 4, 1904, OBJ
tanned judgment against O. Winam in |
this court for the sum of $24S0.25. On
March 3, 1908, Winam died, and on
April, II, 1908, his widow, Chang Tam
Shee, was duly appointed executrix of
his estate.
Plaintiff, having failed to take out
execution on said judgment during the
life time of Winam, on November Is,
1908, sued out writ of scire facias
requiring the executrix to show cause
why execution upon said judgment
should not Issue against any property
which belonged to Winam during his
lifetime.
The executrix demurred to the writ
on the grounds that the writ shows up
on its face that the plaintiff is not en-.
| titled to the relief therein prayed for,
and that the property of the Judgment
debtor is in custodia legis, and cannot
be reached by execution.
1t is urged on behalf of the execu-
trix that, inasmuch as judgments are
not liens upon either the real or per-
sonal property of the Judgment debtor
in this Territory until levy of execu.
ton Hereunder, the plaintiff IS claim
stands upon the same footing as any
other claim not reduced to judgment
and that plaintiff is not entitled to
execution as prayed for.
Plaintiff does not dispute the propo.
sition that judgments are not liens, but
contends that it is entitled to execu.
ton and to have the same levied upon
the property of the estate of the
deceased with the view of having the
Judgment satisfied.
The question thus presented is, not
whether judgments are liens, but wheth-
err Judgment creditor having failed
to take out execution during the life
of the Judgment debtor is entitled to
execution against the property of the
deceased in the hands of his legal rep
resentative.
Il 1t will be observed that the record
does not disclose the fact as to whether
the estate is solvent or insolvent, nor
whether the estate consists of real or
personal property or both.
With regard to the right of the plain
tiff, if execution is allowed to issue,
or the extent of the power of the of.
ficer Hereunder, the court at this time
is not called upon to determine.
y The sole question involved in con-
sidering the demurrer is, whether the
plaintiff is entitled to execution, not
what property or pro rata thereof may
be subject thereto, or whether the heirs
should be made parties.
Mr.. Freeman, at page 32l, Ss7, of
his work on executions, says: upon
J the death of a defendant, leaving a
Judgment which is not lien on any
real estate, no one but his personal
representative need be a party to the
scire facias.
If the Judgment be for money, it is
primarily chargeable against the execu'
tor, and no revivor ought to be entered
against the heirs until after return
of nihil as to the executors
The demurrer is overruled.
Princess Elects to Take Dover.
The election of dover of the Prin'
cess Kawananakoa was fled in the
Circuit Court yesterday. 1t is in form
as follows:
"Now comes Abigail w. Kawanana
koa, widow of the above-named David
Kawananakoa, deceased, testate, anC
hereby gives notice that she declines t.
r accept the provisions of the, will OF
J. said David Kawananakoa, deceased, al
0 the same are in said will contained, anC
:, hereby elects to reserve and take he
dower in the estate of said David Ka
wananakoa, deceased"
0 New Trial Denied.
9 Judge De Bolt has entered an orde
y denying new trial in the case of b
+. Dillingham; VS.. M. F. Scott, TIT
T. motion for a new trial was made by Nj
e F. Scott.
Q Guardians Accounts.
y Abraham Kaleikau yesterday filed hi
= final account as guardian of Joseph Mi
u kaele and Wahinenani, minors. HI
. charges himself with $454.23, and ask
l. to be allowed $120.50, leaving bal
ance due the minors of $333.73.
: Demurrer Filed.
+ The Lung Do Chung Sing Tong BE
Y nevolent Society, by its attorney, A. 5
!. Humphreys, has demurred to the pet
r tion of Yong Kwong Tat for writ o
S mandamus.
d Probate of an Old Will.
Florina Jesus Comes has petitione
for the probate of the will of ~Guilhel
nina Jesus, who died duly 20, 100;
. leaving an estate value at $1,000.
= Divorce Granted.
}. Judge De Bolt yesterday granted
# divorce to Isaac Simerson from MAJ
8, gazette Simerson on the ground o
| a1ultary