In re Keaho's Estate
| Decision Date | 17 January 1906 |
| Citation | 17 Haw. 308 |
| Parties | IN THE MATTER OF THE ESTATE OF KEAHO (W.), DECEASED. |
| Court | Hawaii Supreme Court |
Argued January 8, 1906.
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.
Syllabus by the Court
A decree dismissing a petition to revoke the probate of a will on the ground of forgery is affirmed on the evidence.
The rule announced in Territory v. McCandless, 16 Haw 728, and Texeira v. American Dry Goods Association, ante 41 that it is not correct practice in equity to dismiss a bill at the close of plaintiff's case on motion of defendant without resting is applicable to a proceeding of this kind.
S. H Derby (Kinney, McClanahan & Cooper on the brief) for petitioners.
C. F Peterson for respondents.
OPINION
This is an appeal from a decree dismissing a petition to revoke the probate of a will on the ground that the will was a forgery, this proceeding being brought about three years after probate. The petitioners are four of the five children of testatrix, the revocation being contested by the husband and sole devisee under the will and the fifth child.
Appellants contend in the first place that, on the authority of Territory v. McCandless, 16 Haw. 728, and Texeira v. The American Dry Goods Association, ante 41, the decree should be reversed because the respondents without resting moved to dismiss the petition at the close of petitioners' case, which motion was granted. The rule announced in those two cases applies to proceedings of this kind as well as to equity suits proper. The reason for the rule is the inconvenience of deciding a case piece-meal, that is, a judge or court should not be required to pass upon the merits of a cause more than once. See Fuller v. Met. Ins. Co., 31 F. 696. If a defendant without resting desires to move that plaintiff's bill be dismissed on the ground that the evidence fails to sustain the allegations, he should be required to waive his right to put on evidence, because, if he is not willing to rest, then he must admit that plaintiff's evidence calls for a defense. This, of course, has nothing to do with the right of a judge at any time to dismiss a bill of his own motion. But, in the case at bar, although respondents were not required to rest before having their motion to dismiss the bill entertained, in effect it was the same as if evidence was introduced for respondents, because petitioners themselves introduced testimony for the defense by putting in all the evidence taken when the will was probated.
The claim of the petitioners that the will was a forgery is based upon the fact that the testatrix could not write, the will showing that her name was written, and upon the evidence tending to show that the testatrix could not have executed the will because she was unconscious at the time the will was alleged to have been signed, and that the will was antedated one day.
The will devised all the property to the husband of the testatrix to the exclusion of all the children, who were all of age. This was under the circumstances a perfectly natural disposition to make of the property.
Petitioners put in all the evidence taken at the time the will was probated. They now claim that it was offered merely to show on what testimony the will was probated. But, whatever the purpose was of offering such testimony, the effect was that a prima facie case was made out in favor of the will, which the petitioners had to meet and overcome. See Hesterberg v. Clark, 166 Ill. 241.
That the testatrix could not write was expressly admitted by respondents. The will was signed with the name of the testatrix written out in full, there being nothing to indicate that she was assisted in signing or that it was signed for her by some one else. The witnesses to the...
To continue reading
Request your trial