15 Haw. 13 | Haw. | 1903
Lead Opinion
OPINION OF THE COURT BY
It is not altogether easy to say what ought to be done in a case like this, the record in which teems with irregularities, if not reversible errors, from beginning to end. After distributing half the estate to Thomas Fitch, attorney-at-law for the decedent’s widow, a resident of British Guiana (why distribution should be made to the attorney-at-law rather than to the heir-does not appear), the Circuit Judge allowed time to produce, evidence of other heirs, — upon the expiration of which time, such evidence not being produced, the remaining half was distributed to the same attorney. Some time afterwards evidence was received as to the existence of a sister of the deceased in Hadeira, whereupon the attorney in fact of both the widow and sister (not the widow and sister themselves by their attorney)
Whether a final order of distribution can be revoked on motion in probate, in the absence of fraud or mistake, it is
The order appealed from is reversed and the case remanded to the Circuit Judge for further proceedings consistent herewith.
Dissenting Opinion
DISSENTING OPINION OF
I am convinced that the appeal should be dismissed and therefore do not concur in the judgment of the majority of the court.
On November 25, 1901, a Circuit Judge of the First Circuit Court, sitting in Probate, adjudged the surviving widow, Antonia da Silva, to be the sole heir of the deceased, Jose da Silva, and made an order of final distribution of the estate, directing the clerk of the court to pay to the attorney of the widow, Thomas Pitch, Esq., all of the money in his hands belonging to the estate. There was paid to the attorney under said order the sum of $486.16. There was presented in said cause on January 24, 1902, a motion asking that the order of distribution be modified and that the compensation claimed by Thomas Pitch, Esq., be fixed by the court. A showing was made in support of the motion that a sister and heir of the deceased had been discovered since the making of the order of distribution. In response to said motion the Circuit Judge, on March 6, 1902, ordered that the decree of final distribution be set aside on the ground that it had been made to appear that Jacintha da Silva was a sole surviving sister of the deceased and that the widow was not the sole heir and “further ordered that the sum of $486.15 paid over to Thomas Pitch on or about November 25, 1901, be forthwith paid into court to await fur
The order appealed from was clearly interlocutory and not final and not an appealable order under the practice in this jurisdiction. Brown v. Carvalho, 9 Haw. 180; Barthrop v. Kona Coffee Co., 10 id. 398, 401; Government v. Smith, 9 id. 178; Government v. Ah Sin, 9 id. 164; The Queen v. Poor, 9 id. 399, 401; Humburg v. Iwamoto, 13 id. 702.
It has been held by this Court that an order of a probate court revoking an order of final distribution is not a final order and is not appealable. In re Banning Estate, 9 Haw. 357. The same ruling has been made in Indiana and California. Wood v. Wood, 51 Ind. 141, 142; Estate of Michael Calahan, 60 Cal. 232; Estate Dean, 63 Cal. 613. This is sufficient reason why the appeal ought to be dismissed.
The money was in the appellee’s hands not by virtue of a settlement with his client but by virtue of the order of the Probate Court directing it paid to him, — the order of November 25, 1901 — the same order that was revoked and set aside by the order appealed from. This fact is a complete answer to the contention that the court had no power to make the order of revocation. The power that gave could take away. Again the general and inherent power of the court over its orders and judgments was ample to justify the order complained of. That the appellee, who was ordered to repay the money, was a “third party” and not a party to the suit did not lessen the power of the court over him in this instance. He appeared in the proceedings as an attorney of record for some parties of varied interests in the proceeding and induced the court to make the order directing the payment to him of the money ordered returned into court. It is hardly a proper use of terms to designate him as a “third party.” A review of the record will possibly justify the conclusion that he was about “first party” all through the proceedings, including the entry of the order of final distribution.