Chinn's Estate, In re

• Decision Date: 10 February 1961
• Docket Number: No. 4120,4120
• Citation: 44 Haw. 613,359 P.2d 932
• Parties: In the Matter of the ESTATE of Clarence Cheong CHINN, Deceased.
• Court: Hawaii Supreme Court

Page 932

359 P.2d 932

44 Haw. 613

In the Matter of the ESTATE of Clarence Cheong CHINN, Deceased.

No. 4120.

Supreme Court of Hawai'i.

Feb. 10, 1961.

Syllabus by the Court

1. A party appealing to a circuit court for jury trial of issues of fact raised at chambers in probate should first file notice of such appeal captioned in the probate court and then file motion for jury trial of the facts in issue captioned in the circuit court.

2. A motion to dismiss an appeal to a circuit court for jury trial of issues of fact raised at chambers in probate, should be filed in the circuit court and not in the probate court.

3. A notice of appeal to a circuit court for jury trial of issues of fact raised at chambers in probate, wrongly captioned in the circuit court but clearly stating the intention to divest the probate court's jurisdiction, is not fatally defective.

4. R.L.H.1955, § 208-3, providing for payment of 'the costs accrued' by the party appealing from a decree in chambers to a circuit court for jury trial, has only limited application in the present state of the law. This statutory provision has been affected by other legislation (S.L.H.1939, c. 19). Pursuant to the latter, the costs usually will have been collected prior to the taking of the appeal, and there will be no accrued costs to be collected at the time of the appeal. The costs involved are government realizations which are not intended to be collected a second time.

W. Y. Char, Honolulu, for appellant.

Richard D. Welsh, Honolulu, for respondent.

Wong, Lau & Lo, Richard C. Lo, Honolulu, for Cooke Trust Co., Ltd., Administrator with the will annexed.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, and LEWIS, JJ., and HAWKINS, Circuit Judge assigned by Reason of Vacancy.

LEWIS, Justice.

This is an interlocutory appeal from an order denying a motion to dismiss an appeal to the circuit court by contestants, whose objections to the admission to probate of the September 17, 1956 will of deceased were disallowed, and the probate contest ordered dismissed, by a circuit judge sitting at chambers, the Honorable W. Z. Fairbanks.

The contestants, appellees here, are Yau Lee Chinn, an adult son of decedent, and Amy Farias, next friend of Yau Hook Chinn and Geraldine Louise Chinn, minor children of decedent. The decision against them was rendered and judgment entered November 6, 1958. On November 14, 1958 they filed a paper designated 'Notice of Appeal and Motion for Jury Trial,' captioned 'In the Circuit Court of the First Judicial Circuit.' All previous papers in the proceeding had carried in the caption the additional words 'At Chambers' 'In Probate.'

Fanny Loo Chinn, widow of decedent, was the petitioner for probate of the will, in which she is one of the devisees, the others being the three children who, however, are not her children but the children of Amy Farias, divorced wife of decedent and next friend of the minor contestants. The widow hereinafter is referred to as the proponent and the contestants are referred to as such.

When the circuit judge dismissed the contest he appointed Cooke Trust Company, Limited, as administrator with the will annexed, instead of appointing proponent, who was designated by the will of September 17, 1956 as executrix. Proponent and the administrator with the will annexed moved on January 6, 1959 for dismissal of contestants' appeal. This motion was based on the alleged failure to pay 'the costs accrued,' and two other grounds (failure to file bond and state the issues of fact relied upon on appeal) which have not been urged here. No point was made as to the caption used by contestants.

This motion, unlike contestants' paper, carried in the caption the words 'At Chambers' 'In Probate.' It was noticed for hearing before and was heard by the Honorable Frank A. McKinley. By order of February 17, 1959, Judge McKinley denied the motion to dismiss contestants' appeal and at the same time allowed an interlocutory appeal to this court, which has been taken by proponent. The administrator with the will annexed appeared before us but filed no brief and presented no argument, advising this court that it considered itself a stakeholder. We express no opinion on the status of an administrator with the will annexed during the pendency of an appeal from an order disallowing objections to the probate of the will.

We first consider two questions raised by this court, sua sponte, having to do with the use and nonuse by the parties of the words 'At Chambers' and 'In Probate' in the caption of the various papers filed below.

Due to the nonapplicability of the Hawaii Rules of Civil Procedure to certain proceedings (H.R.C.P., Rule 81(a)) there still obtains in this State, in probate proceedings, the statutory distinction between the jurisdiction of the circuit court and a circuit judge at chambers. R.L.H.1955, § 215-18, provides that the conducting of probate proceedings is a part of the 'power at chambers' of the 'judges of the several circuit courts' but 'subject to appeal to the circuit and supreme courts, according to law.' The expression 'probate court' is used herein to signify the circuit judge sitting at chambers in probate.

This court has deemed it unnecessary to decide '[w]hether the circuit court and the court of the circuit judge at chambers should be regarded as one, that is, whether they should be considered merely as the law and equity sides of the same court, or whether they should be considered as distinct courts, though presided over by the same judges.' Carter v. Gear, 16 Haw. 242, 251, affirmed 197 U.S. 348, 25 S.Ct. 491, 49 L.Ed. 787. Upon another phase of Carter the court ruled that the question whether the petition was before the circuit court or before the judge at chambers should be decided upon 'the record as a whole.' Carter v. Gear, 16 Haw. 412. The criteria are illustrated by Kala v. Mills, 15 Haw. 422, and Kendall v. Holloway, 16 Haw. 45, in which it was held that resort to a circuit judge at chambers was intended, while in In re Candido, 31 Haw. 630, there was nothing to show that the jurisdiction of the circuit judge at chambers was invoked or exercised. In each case the record as a whole was considered.

Both parties have cited Estate of Walker, 43 Haw. 304, 306, in which the court sustained the denial of a jury trial in a probate matter, saying:

'* * * The probate court and the circuit court are not one and the same. A motion for a jury trial must be made not in the probate court but in the circuit court after an appeal has been taken there. (Estate of Brenig, 7 Haw. 640).'

The record in Walker shows that an order for distribution of the estate was made by the Honorable Harry R. Hewitt, and within ten days thereafter the claimant filed a motion captioned 'At Chambers' 'In Probate' wherein he moved 'this Honorable Court' that a certain issue of fact 'on appeal be tried by a jury in accordance with Section 12002 of Revised Laws of Hawaii 1945 [R.L.H.1955, § 317-2].' Together with the motion the claimant filed a notice that the motion would be presented before the same judge, the Honorable Harry R. Hewitt, who thereafter heard and denied the motion. Had the claimant intended to address the circuit court, the appellate tribunal, this motion would have been presented to another judge; pursuant to R.L.H.1955, § 208-3, Judge Hewitt would have been prohibited from sitting upon an appeal from his own decision. Upon the record as a whole the motion in Walker was made in the probate court, the trial court. Though one may take a precautionary appeal in some circumstances, the claimant in Walker did not so proceed but, on the contrary, was endeavoring to pursue his appeal in the trial court. The essence of an appeal is the divesting of the trial court's jurisdiction. See Madden v. Madden, 43 Haw. 148, 150.

In the present case Judge Fairbanks was the assigned probate judge when the contest first was heard and accordingly retained the matter when the 1958 term commenced January 13, 1958, under the Order of Assignment, rendering the decision of the probate court upon the will contest. However, Judge McKinley was assigned to the probate calendar and civil proceedings sounding in probate during that term, and the 1959 term did not begin until January 12, 1959. The motion to dismiss the appeal was noticed for hearing before him on January 9, 1959.

When Judge McKinley denied the motion to dismiss the appeal and allowed the interlocutory appeal the order he signed, like the motion to dismiss the appeal, was captioned 'At Chambers' 'In Probate.' The order allowed the interlocutory appeal 'pursuant to the provisions of Section 208-3, R.L.H.1955,' which relates to appeals from circuit judges at chambers. Correctly, R.L.H.1955, § 210-1, should have been cited if it was the circuit court that was making the ruling. That is, viewed as a circuit court ruling, the order would be reviewable by an interlocutory appeal under H.R.C.P., Rule 73, in lieu of the interlocutory bill of exceptions formerly allowable under R.L.H.1955, § 210-1. Compare the procedure followed in Estate of Lazarus, 11 Haw. 379.

Contestants had invoked the appellate jurisdiction of the circuit court. They filed a notice of appeal, which is the method prescribed for taking the appeal pursuant to R.L.H.1955, § 208-3, applicable here as held in Estate of Lazarus, supra. They sought to move for a jury trial at the same time by the same paper; the heading read 'Notice of Appeal and Motion for Jury Trial.' In the body of the paper contestants first stated that they 'do jointly and severally hereby give notice of their appeal and do hereby appeal to the Circuit Court of the First Judicial Circuit from the Decision and Judgment at chambers of the Honorable W. Z. Fairbanks, filed November 6, 1958 * * *.' In a further paragraph contestants 'move the Appellate Circuit Court that the issues of fact raised by the Caveat and Objections to Probate filed by...