7 Haw. 640 | Haw. | 1889
Opinion of the Court, by
A petition for probate of the will of Charles Brenig, deceased, was filed by S. B. Dole, the Executor named, on the 5th October, 1888. At the hearing Mr. Y. V. Ashford appeared for the widow, Mrs. Kenahu Brenig, and Messrs. A. Rosa and C. L. Carter appeared for Samuel Maikai, claiming to be next of kin to the son of decedent. Both these parties filed appearances contesting the validity of the will on the ground that the maker thereof was not of sound and disposing mind.
At the hearing the witnesses were examined by proponent’s counsel, and cross-examined by contestants’ counsel. But the
By the Court.
We held at the argument on the 18th March that a bill of exceptions, and not an appeal, was the proper method of bringing up this matter to the Full Court. There was a judgment of the Court in regular session made in the progress of the proceedings, and by force of Section 836 of the Civil Code an exception and not an appeal would lie to this.
The statute upon which the appeal to a jury from a Probate Court is founded is as follows: Act of 1864, Compiled Laws,
We think the proper, course should be that such appeals should first be placed on the calendar of cases without a jury, and the appellant’s motion being made that the issue of fact be tried by a. jury, and upon his showing that he had complied with the statute in all respects, his motion would be granted, and the case would be ordered to the calendar of jury cases for trial.
We now take up the grounds upon which the appeal was dismissed : (1) “ That no issue of fact was made by appellant, nor anything tried before the Justice admitting the will to pro-' bate upon which an appeal could be taken.” It was urged by proponent’s counsel that as the contestant offered no evidence to show that the decedent was of unsound mind when he made the alleged will, there -was no issue between her and the proponent, and she could not be said to have been “ aggrieved by the decision ” admitting the will to . probate. But this issue was made by the appearance of the widow contestant, in which she contests the probate on the ground that the maker of the will was not of sound mind. There may be an issue joined, though the contestant produces no evidence in support of his side of it. A contesting party having made his issue can reserve his proofs for the jury trial.
We do not think this good ground for dismissing the appeal.
The second ground is, that no affidavit of value of the estate was filed. But as we have seen, it does not appear that the
The objection seems to us to be premature. The statute does not require that proof that the estate exceeds the value of $500 should be made within ten days after the decision of the Probate Court, nor on the first day of the term, nor at any particular time. It only requires that this shall be made certain as a condition of allowing the issue to go to a jury.
The third ground was not urged by proponent’s counsel.
The fourth ground of dismissing the appeal we hold good. The widow, in her appearance to contest, did not claim the estate or any part of it by virtue of the will. The will devises the decedent’s property to certain persons “over and above the interest of my wife Kenahu by way of dower in the whole of my estate.” The widow’s dower is a statutory interest, and incapable of being defeated by the husband’s will. The will merely recognizes the right of dower which the wddow would have were her husband testate or intestate.
Nor does the widow contestant show that she claims the estate or any part of it by virtue of the statutes of descent. She does not allege or show that she is,a statutory heir of decedent. She does not claim that, if the will should fail (on her succeeding on the trial of the issue of the sanity of the testator) she would inherit, by virtue of the statutes of descent, the whole or any part of or interest in the estates. The will mentions a child, and excludes him from all participation in the estate. To enable the widow to inherit as an heir, the decedent must have died without issue. This she did not allege nor prove.
We held in Re Estate of Bernice Pauahi Bishop, 5 Hawn., 289, that “the person desiring to appeal against the decision of the Probate Court, admitting the will to probate, must claim and prove, prima facie at least, that he is an heir-at-law of the decedent and would inherit the property involved, or some interest in it, if the will should finally be refused probate.”
We wish to emphasize the requirements of the statute that the claim to the estate must be made before the Court of Pro
We pass by the fifth ground, with the remark that if the statute has been complied with in making an issue by a legal claimant of the estate, it is not necessary that the Probate Court shall certify to it.
Having found that the fourth ground for dismissing the appeal is good, the judgment of the Court in dismissing the appeal to a jury is sustained, and the exceptions are overruled.