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:iC COMMERCIAL. ADVERTISER; HONOLULU, FEBRUARY 2.5. 1393.
In the Supreme Court of the Ha waiian Islands. Dkckmheu Tkicm, IiV.M. FPfOEE JCL.D. C. J.. MCKEKTON, J.. AND J. A. MAGOOX. EEO.. A MEMBER OP THE BAR WHO SAT IN PLACE OF MR JHSTICE (REAR. ABSENT FROM ILL STBS. Xssx. Phelps, JC8ZPB O. PLAINTIFF IN ERROR VS. Caetzk, DEFENDANT IN ERROR. (1). A person named in the mil a executor renounced tbe trust on tbe V ill bemg proved in tbe Probite Court and an Administrator rith tbe Will annexed was appointed who wound up the estate and was di"cbarKed. Tbe Will wan contested ar.d tbe case carried on appeal to a jury who anstained the probate. After the discharge of the Administrator a writ cf error was toed out alleging error in tbe charge of the Court and the assignments of error were served upon the Executor named in the Will, as defendant in error. Held, that the writ should be quashed because served upon the wrong peison. fxnlle, if the Administrator had been made defendant in error, plaintiff in error would be remediless so far as the property of the testator was concerned, it having been delivered to the devisee. (2). Any person "aggrieved" may apply for a writ of error. OPINION OF THE COURT BY JCDD, C. J. This is a writ of error to rovie and correct certain alleged errors of law in the charge of tbe Circmt Judge to tbe jury on an appeal from the Probate Court to tbe jury. thg. issue being tbe competency of one Charlotte Adams, to make tbe will in question. Tbe will was admitted to probate on tbe petition of J. O. Carter wbo was tbe Execntor therein named. Mr. Carter in bis petition prayed tbat tbe will be admitted to probate and "that letters testamen tary be issued to some person to be named by tbe Honorable Conrt," and on the will being proved and tbe an nouncement made in open Court that Mr. Carter would renounce the appointment as Executor, tbe Court appointed, on nomination of tbe de Tisee, Mr. Charles Lucas. This was on the 3d of November, 1893. Tbe will was contested and finally carried to a jury and a verdict sustaining tbe probate was rendered May 24 tb, 1804. Exceptions were taken and a motion for a new trial filed but not argued. On tbe 10th July Mr. Lucas, admin istrator, by bis counsel moved that tbe motion for a new trial be beard and disposed of on tbe 12th, and on that day the motion was heard and overruled. Later the parties by counsel stipulated tbat the contest ants should have until 1st September, 1891 to have the bill of exceptions allowed. This was not done. Mean while the Administrator had settled the estate, paid the liabilities, filed his accounts, and, pursuant to pub lished notice of bearing, on the 9th of November, 1894, tbe day set, the accounts were allowed and Mr. Lucas discharged from all further responsi bility as adminsistrator and his bond cancelled, having delivered the re maining property to the devisee named. On the 24th November the con testant Anna Phelps filed her petit ion for a Writ of Error, which was served upon J. O. Carter as defend ant in error. At the December Term of this Court a motion to quash the writ was made upon tbe following grounds: (1.) That there are other parties in interest besides plaintiff in error. (2.) That tbe writ of error was not issued within six months from the rendition of the judgment com plained of. (3.) That J. O. Carter is not a party to the proceedings, having re nounced the Executorship of tbe Will in question but that Charles Lucas was tbe administrator with the will annexed and was tbe pro ponent of the will at the May Term, 1804. (4.) That the judgment complain ed of was fully satisfied and executed previous to the issuance of the writ. (5.) That the matters set forth and alleged as error are not legal grounds upon which the writ should issue. (G.) That no bond was filed by plaintiff in error to pay the judg ment in case of failure to sustain the writ. We overrule the first ground of the motion to quash. We think the statute, Chap. 95, Laws of 1892, de fining Writs of Error allows any party "aggrieved" to sue out such a writ and it is not essential that all tbe parties wbo contested the Pro bate of the will should be joined as petitioners for the Writ. We think tbe motion to quash should be sustained npon tbe third ground. The proper party to be served with the copy of the assign ment of errors, as defendant in error, was Charles Lucas. He was the representative of the estate. Mr. Carter, the Executor named, had re fused to accept the trust. The issue before tbe jury on appeal frcm the Probate Court was between Mr. Lucas and the contestant. This point is sufficient upon which to dis miss the proceedings. But an -l-6i8 of the statute on Writs of ) raises serious doubts whether J i will lie to correct proceedings f this nature. The statute says: Sec. l, that the writ may be bad "at any tim before execution thereon is folly satisfied, within six months from the rendition of judgment." Bat in onr case the verdict of the' ury rendered no judgment sounding m damages upon which execution conld issue and be satisfied. So also tbe Boul required by Sec. 8. to be filed by plaintiff in error "condition ed for the payment of tbe judgment in raid original canse in cae of failure to feustain tbe writ of error' conld not follow the statute literally for there was not nor could there be a judgment capable of beine naid when the issue before tbe jury was the question whether the will was validly executea. ir an argument by analogy is admissible in this case we should be inclined to hold that the discharge of the administrator, if not a "satisfaction ox tne execution," made tbe plaintiff in error remediless so far as tnr. estate theretofore in the case of the Court was concerned. The property of the testator was, pending administration, in tbe bands of the Court and the Court had con trol of it through the administrator but at the date of the application for tbe writ, the trust had determined and the Administrator had no longer any interest in or concern for it. . The Writ is quashed. C. W. Ashford for petitioner; W. a. mnney ana u. xsrown ior res pondent. Dated Honolulu, H. I., February 18. 1895, as of the December Term, 1834. by by New Books at the Library. Tne ioiiowing dooks nave re cently been received at the Hono lulu library : "A Bbelf of Old Books," by Mrs. James T. Fields. I "A History of the United States, 'Some Strange Corners of Our Country," by Charles F. Lummis. "Colonial .Days and names," 'Anne Hollingaworth Wharton. Through Colonial Doorways," Anne Hollingsworth Wharton. 'Occult Japan," by Perclval Lowell, cThe Wagner Story Book," by William Henry Frost. Wulf, the Saxon," by G. A. Henty. "When London Burned," by O. A. Henty. 'The Potter's Thumb," by Flora Annie Steel. 'Tales of the Punjab," by Flora Annie Steel. It 'Tbree Boys In An Electrical Boat," My John Trowbridge. '( "The Three Marketeers," by Alex ander Dumas. "Doreen," by Edna Lyall. "Lady Jane," by Mrs. C. V. Jami son. The Lilac Sunbonnet," by S. li. Crockett. "John March, Southerner," byG, W. Cable. "Tbe Ebb-Tide," by It. L. Steven son and Lloyd Osborne. "Evan Harrington," by George Meredith. "A Song of Life," by Margaret Warner Morley. "Letters of Baptism," by Edmund B. Fairfield. "The Child and Nature," by Alex. E. Frye. "Childhood In Literature and Art." by Horace E. Scudder. TO LET OR LEASE. -Ml A Nice Convenient, New Cottage With Barn, Servant Room, Chicken House, on Wilder Avenue, near Tensa cola street Large Pasture For Horses, AI.SO Family Horse and CARRIAGE FOR SALE &For further particulars inquire on the premises or of 3925-6W . P. M. ROONEY. 3? or Sale. A FINK front by HOUSE LOT, 100 FEET 150 feet deep, situated on Kinau street near rensacola. uniy a short distance from the tramcar line. It i i . j is h very aesiraoie piace ior a residence. For farther particulars apply to J. ALFKED MAGOON. Attorney at Law, near the Post Office. 3S47-tf HUSTACE & CO.. DZALKEB IH WOOD AND COAL Also White and Black Sand which we will aell at the very lowest market rates Ef Hfi.t, Tslxthoxb No. 414. CEMunui, TaLxrHomi No. 414. 3493-ly CLEARANCE SALE t COMMENCING February 4th, for 3 Weeks I will sell my entire sistinj; of stock con- JAPANESE SILKS ! Dress Goods, Sashes, Handkerchiefs, etc. REGARDLESS OF COST 320 YAMAUCHI, street, next door to Mclntvre's Grocery Geo. Assignee's Notice. TI1E UNDERSIGNED HAVING JL been appointed Apsignee in Bank ruptcy of the Estate of J. A. Affoneo of Uonokaa, notice is hereby given to all creditors to have their approved claims presented at once to him at the oL.ce of H. Hackfeld & Co. All persons owing the above named Estate are requested to make immediate payment to C. B0SE, Assignee of the Bankrupt Estate of J. ;A. AffonsoofHcnokaa. 3S93-tf lG2o-3t ss Me "WHY WAS I BORN SO BEAUTIFUL? JUST RECEIVED FROM HENRY CLAY AID BOCK & COMPANY Olioice Havana Oigars Hollister Si Co. 7 PUSS IN BOOTS. Ia all right a-foot. This is quite necessary, notjonly for puss, but for every one in town, this time of the year. Keep the feet all right, and health and comfort are apt to be secure. Our stock of footwear embraces pretty much everything in boots and shoes for in and outdoor wear, business and pleasure, town and country. After inspecting our collection of footwear, ttere'a nothing more to see in the way made on a little last, and the goods are good enough to last till the flowers come again. TBE MANDFACTDRERS' SHOE COMPANY, 516 PORT STREET. Arrived li v Ike AWa 9J A iid added to our large and selected stock of Hardware ! Steel Garden Trowels,5f,6 and 7 inches, Hawaiian Flags 4J to 12 feet, Wostenholm Poc ket Knives, 150 dozen assorted; Stubs' Jewellers' Files, 109 dozen assorted; Door Mats, "Aloha" and plain, large as sortment; Brass Blacksmiths' Rules,Steel Blacksmiths'Rnles, A FINE LINE OF RAZORS The bestJSwing Strops, Mixed White Shellac, Hair and Horse Clippers, Hunning's Transmitters, L. D. Hand Telephones, Bull's Eye Dash Lanterns, Powder Loading Measures, Hammock Hooks, Paint Brushes, Patent Castors, Turn Buckles, etc., etc., etc. E. 0. HALL d Comer Fort and SON King Streets. 1 M OF PEACE THE WAE b!tweeiVa" pan and China is still on, although active work in the field has been sus pended until spring. Through my agents, I made arrangements before war was declared for an immense stock of goods to be shipped as I re quired, consequently I can af ford to sell at the same low figure. Ex Bentala I received a con signment of goods comprising all the latest and freshest de signs in Dress Goods, Scarfs, Morning Gowns for ladies and gents, Silk Kimonos, Smoking Jackets, Silk Pajamas, Japa nese and China Ware. Screens, Portieres, Lamp Shades, etc. The latest thing in Lacquer Ware, is the Cherog Lacquer made up in handsome designs which cannot help to please the most fastidious. PRemember, I have the leading store for first-class Japanese Goods. DAI NIPPON, HOTEL STREET, ABINGTON BLOCK. MRS. J. P. P. COLLACO, Proprietress. OTHER PEOPLE'S MONEY Is what we want, but in order to ob tain it, we must give VALVE FOR VALUE and invite tbe attention of the PEO PLE ( tourists especially; to make a thorough examination of our stock and prices, in Sterling Silverware Souvenir Spoons, Plated Ware, Watches and Diamonds, Native Jewelry, manufactured in unique de signs and to order. Jacobson & Pfeifier. FOKT STREET, Wenner & Co.'a Old Stand . 3858-tf PIONEKK Steam Candy Factory and Bakery F. HOKN, Practical Confectioner and Baker, NO. 71 HOTEL 8TBKKT. 3753-tf LOOWi BACPARD On our success for the past year that we have been in business we are more than pleased with our sales, and wo feel confident that all our transactions with our custom ers have been of such a nature that they are as fully pleased as we are. Looking Forward To the prospect for the cf ai ing year we hope that wo hve so pleated our patrons that we will see them again, and that their friends will see how nice ly they have been fitted out and profit thereby. We shall greatly increase our stock this coming year, receiving new and fresh goods by every steamer direct from the most reliable manufact urers of Europe. Timely Suggestions for the coming few months and hints on our specialities. Ladies' Underwear in Mus lin, Flannels and Silks at greatly reduced prices. Ladies hosiery in White, Black, and Tan at prices that will surprise you. A fine assortment of Silks in all shades and grades from 50 cents up. Complete stock of Ladies' Gloves, and Silk Mitts, Nit ting Silks, (in all ' shades) in prices that can't be duplicated. ISiJ" Don't fail to inspect our stock of Ladies', Gents' and Childrens' fine Shoes and Slippers. Temple of Fashio 519 Fort Street, m. a. 8ir,VA, Proprietor The Hawaiian Electric Company - f -m fr vj w Are now prepared to wire houses either by contract or day labor and to furnish elec trie lamps, chandeliers and fittings of all descriptions and of elegant modern styles at reasonable rates. The Company is now extending its linetoKapiolani Park, and parties dwelling on the route who are desirous of being connected on the system, will please communi cate with THEO. HOFFMANN, Manages. Hawaiian Electric.Co i