Year: 1861

SUPREhE SOUhI.---In PFObate.


In The matter Of the proof of the ncia of JOSE NADAL


JUSTICE ROBERTSON delivered the decision of the ma
| jority of the Court as follows:


On the 9th of August last the Right Rev. Louis


Maigret. Roman Catholic Bishop at Honolulu fled a


petition, sole legatee for probate Of the last will Of


Jose Nadsl, late of Honolulu, deceased, before the


Chief Justice at Chambers The hearing was set for


the 18th of August and upon that day counsel appear


ed to contest the will offered for proof on behalf of
Prince L. kamehameha On the 9th of September,


the Chief Justice gave judgment in favor Of the validity


Of the will, and thereupon appeal to the full Court


was noted on behalf of the contestant.


When the matter came up for hearing on appeal


counsel for the contestant moved the Court to mpanne


jury, to try the issues of fact nvoTed in the cause,


in virtue Of Section S54 of the Civil Code which pro-


vdes that in all matters be tried before single JUS


tice special jury may be impanneled at the discretion


of the Court to try issues of fact The Court overrul


ed the motion, the ground that by Section l24l of


the Civil Code it is expressly provided that all probate
shall be heard and determined by the Court or
Justice without the Intervention of jury, making that
class of cases. it always before the enactment of


the Code, express exception to the general rule as
laid down in Section 854


1t appears by the testimony that Jose Nada died in
the Queens Hospital on the Sd of August whittier he
had removed from Makiki about fortnight before
On the 2lst of July he executed document in the
Hawaiian language purporting to be WILL by which
he bequeathed all his property to Prince L. Kameha-
meha, with proviso that he should give part of the
property to the decedents daughter Catalina Nadal
who resides at Santa Barbara, in California and on
the Both of July he executed the document now present
ed for probate, which is in the English language and
dated the 3lst of July, bequeathng all his property
d" the Rev. Dr. Magrait, Roman Catholic Bishop of the
Sandwich Islands, his heirs and assigns and appoint
ing William Bromley Barnes his executor.


Nadal was afflicted for a number Of years previous
to his death with chronic rheumatism and asthma and


attery with drOpsy produced by disease of the heart
He always q superstitious mana believer in spec
tres and native charms After entering the Hospital
his weakness in this respect became excited by disease
and by the fear of approaching dissOluti n. He was
afraid in the day time, to be left alone in his
chamber for week before he died, shedding tears if
left alone. and saying that he saw supernatural sights
and evil spirits woman died in the Hospital about
the 26th of july and he expressed his fear that her
ghost would come for him. Sometimes he ohserv-
ed to stretch ont his hand saying Go away go away


don't want you, as speaking to spectre which
he fancied he At times he conyersed with another
patient, who slept in the same room, about religion,
saying he had been great sinner, and asking to have
portions of the New Testament read to him. He was
visited by Of the priests and members of the RO
man Catholic Church, to which he belonged. Bishop
Maigret visited him few days before his death. He
was also visited by Mr. John Ii about the ls of August
to whom he stated in conversation that he spectre
and much troubled by natives at Makiki who
we're working incantatons against him and that he
had made will bequeahng his property to Prince L.
Kamehameha, to whom, and to whose family, he ex-
pressed his gratitude for long continued favors Some
conversations between Nada and other parties in rela
ton to his intended disposition of his property were
given in evidence About four years ago he stated to
Robert E. Wakeman that he should leave his property
to the Bishop, " that was his religion" Subse-
quently, he stated to Mr. Haaelea, and to Mr.. R. G..
Davis, at different times, that he intended to leave his
property to Prince Kamehameha. For the last twenty
six hours previous to his dissolution he in
tose state He is believed to have been native of
Spain, but had resided in this country for many years


The validity of the instrument now presented as a
win is contested several grounds First, that it is
evidently the offspring of insane state Of mind-the
result of mental terror and not of natural desire in
tenton secondly, that the will presented would carry
the property to Bishop Maigre and his personal rep
resentatives not to the Church, as Nadal intended
thirdly, that if it was made by the decedent for the
benefit and rest of his soul is viii to supersttious
uses, and ought, therefore, to be held void.


Upon examining the evidence, we find one deficiency


in the proof of the execution of the document By Sec
ton 1865 Oft the Civil Code it is required that every
will shall be " attesed by two more competent wit
subscribing their names to the will the
Of the testdtOr There two subscribing witnesses
to this instrument but it is not expressly proven that
of them, Alfred Doiron, subscribed his name in
Nadas presence. If the Court should refuse probate
that ground, the proponent might, probably under
our practice, renew his application, upon affidavit
and the contestant has not raised the objection, We
presume he is satisfied from all the evidence that the
document was in fact executed with the formaty which
the statute prescribes.


There is another and much more important point


in the cause which constitutes the second ground Of
objection raised by COUNSEL and which should naturally
be considered and disposed Of before advertng to the
other two. The point arises from the apparent vsri
between the form, and legal effect Of the instru
ment now propounded, and the verbal instructions
which the decedent gave for the preparation of will
,so1
executed by the deceden, while he possessed Of full
capacity to make disposition of his property, there is
still most important question to be determined by
the Court to whether not this instrument does in
fact express the VW Of Jose Nadal for it is the mental
voon, the intention and consent Of the party, that
give life to the instrument /" will, says Sir John
Nichol means not barely the signing Of it, and the
formal publication delivery. but proof in the language
of the cOnd, that he well knew and understood the
contents thereof, and did give, WILL dispose and do in
all things in the said will contained [Zteharas
rs. Coils. Phillimore, l79.l Swinburne, in his
eellent Treatise, says, This word Testdmeun is as
much testdfto nentis, that is say testfying
witnessing of the mnd.' And in giving the definition
of testament, he says, ga testament is just sentence
of our will, touching that We would have done after our
death" And. again, I" For without meaning
sent of mind the testament is altogether without life
and is no more testament than q painted lion is q
lion.' [Swinburne on Wills, Part First, Secs. l. 2 3.


Let refer to portion of the testimony in the
present cause 1t appears that Nadal was visited at
the Hospital by Mr.. Jason Perry, Portuguese by
birth, and friend Of the decedent Mr. Perry, who
is the chief witness introduced establish the will
is an intelligent and highly respectable
member of the Roman Catholic Church. He stated
that Nsdal requested him to have will drawn up'ds
posing of his property and told him how he wished it
made and that he communicated Nadafs instructions
TO Mr. Walter Lee. solicitor, who drew the will
presented. Upon the question being asked by counsel


Did Nadal direct his property to be left TO the Bishop
personality the witness replied Yes, and then
peated the decedent's expression. To the Roman
Catholic Bishop, he said, for the benefit and rest of his
NadaPs) soul. told Mr. Lee that the will to be
made for the benefit and rest Of his soR cannot say
now it was that it was drawn to Bishop Mai
yret, his heirs and assigns And on being
lsked, Q Roman Catholic, what he under
'tood by the decedent's words, he replied. 81
.hond say thai the ,znrda To be for the benefit