Ahin v. Opele
| Decision Date | 06 June 1906 |
| Citation | 17 Haw. 525 |
| Parties | Y. AHIN v. OPELE (W.) |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREAPPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
In a suit brought against a widow for the admeasurement of dower, where the widow denies she has any dower right, a circuit judge at chambers has no jurisdiction to determine the right of dower.
D. L. Withington, (Castle & Withington on the brief), for plaintiff.
W. S. Edings, (with whom Kinney, McClanahan & Derby were on the brief), for defendant.
This is a suit in equity brought by Ahin, who claims to own in fee simple certain premises, the source of title not being set forth, against Opele, the widow of one who died seized thereof, to admeasure the dower of Opele in same. The petition alleges that Opele is entitled to a right of dower, is in possession of a part of the premises, and that Ahin is desirous that there should be an admeasurement of the dower interest. Opele answered by denying any right, title or interest in Ahin, and denying any right of dower in herself, and claiming to own all of the premises in fee simple and a right to the sole and exclusive possession.
Ahin filed a motion to set the cause for hearing and trial, on the hearing of which motion Opele asked that it be denied and moved that the bill be dismissed on the ground that no right was shown to bring the suit. The circuit judge dismissed the bill on the theory that there was nothing to try, as the widow had denied she had any right of dower, from which decree Ahin appealed.
In this Territory circuit judges at chambers have jurisdiction to admeasure dower. R. L. Secs. 1648, 1649, 1838. Whether or not only the widow and those designated by statute are entitled to institute proceedings for the admeasurement of dower, see 14 Cyc. 984; Jackson v. Vanderheyden, 17 John. 167; Re Hopper, 6 N. J. Eq. 325;Herbert v. Wren, 7 Cranch 370; Badgley v. Bruce, 4 Paige 97. But, even if Ahin had authority to institute these proceedings, could the circuit judge determine that the defendant had a right of dower against her denial of such a right? The only statutory authority, aside from the sections just cited, that appellant relies on are Secs. 1842 and 1843 of the Revised Laws, which provide as follows:
“Matters of probate and of administration shall be heard and determined by the judge having jurisdiction thereof, without the intervention of a jury.” R. L., Sec. 1842.
“But whenever the value of the estate of any deceased person shall exceed five hundred dollars, any person claiming, before any judge, sitting as a court of probate, such estate, or any part thereof, or any interest therein, by virtue of any will or testamentary devise, or by virtue of the statutes of descent of property in this Territory, who may deem himself aggrieved by the decision of such probate judge at chambers, may, upon taking his appeal to the circuit court, if any matter of fact is in issue, move the appellate court that the issue of fact may be tried by a jury, and his motion shall not be denied.” R. L., Sec. 1843.
Those sections, however, only refer to issues of fact arising by virtue “of any will or testamentary devise or by virtue of the statutes of descent of property in...
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