In re the Will of Hewahewa

Hawaii Supreme Court

In re the Will of Hewahewa

2 Haw. 165, 1859 Haw. LEXIS 9

CourtHawaii Supreme Court

DecidedMay 3, 1859

StatusPublished

Cited by1 cases

This text of 2 Haw. 165 (In re the Will of Hewahewa) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Will of Hewahewa, 2 Haw. 165, 1859 Haw. LEXIS 9 (haw 1859).

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Opinion

Judge Robertson

delivered the decision of the Court as • follows:

The application for probate of the will of Hewahewa was originally made to the Circuit Judge of the Island of Maui, who, "after a formal hearing, rejected the will. The applicant then appealed from his decision, to the Supreme Court. The appeal was heard by this Court in the month of February last, and the judgment of the Circuit Judge was affirmed.

The applicant now moves the Court to grant a new hearing, on the ground of newly discovered material evidence. In support of this motion, Patrick Shaw, the husband of the applicant, presents a general affidavit, stating in substance, that since the former hearing in this Court, it has come to his knowledge that there are witnesses living on the Island of Oahu, who were unknown to him at the time of the former hearing, and whose testimony is important to the establishment of the validity of the will. Shaw also states some of the facts which he believes he would be able to prove upon a new hearing.

The motion for a new hearing is not supported by the affidavits of any of the newly discovered witnesses, as to what they could testify; nor are the names even of any of those witnesses specified in the affidavit of Shaw.

If is unnecessary therefore for us to examine the merits of the proposed new evidence, or the question of the applicant’s diligence, in order to decide upon the motion, because of the well established rule, which has been adhered to, we believe» ever since the case of Walker vs. Grimes (1st Hawaiian Reports, page 34), that applications like the present should be accompanied by the affidavits of the witnesses to the newly [166]*166discovered evidence, unless good cause is shown why such affidavits have not been obtained ; and in any case the names of the witnesses should be specified, together with the substance of what each of them would testify.

May 3d, 1859. Messrs. Blair and Harris, for appellant. Mr. Bates, for appellee.

The motion is refused.

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Judge Robertson

delivered the decision of the Court as • follows:

The application for probate of the will of Hewahewa was originally made to the Circuit Judge of the Island of Maui, who, "after a formal hearing, rejected the will. The applicant then appealed from his decision, to the Supreme Court. The appeal was heard by this Court in the month of February last, and the judgment of the Circuit Judge was affirmed.

The applicant now moves the Court to grant a new hearing, on the ground of newly discovered material evidence. In support of this motion, Patrick Shaw, the husband of the applicant, presents a general affidavit, stating in substance, that since the former hearing in this Court, it has come to his knowledge that there are witnesses living on the Island of Oahu, who were unknown to him at the time of the former hearing, and whose testimony is important to the establishment of the validity of the will. Shaw also states some of the facts which he believes he would be able to prove upon a new hearing.

The motion for a new hearing is not supported by the affidavits of any of the newly discovered witnesses, as to what they could testify; nor are the names even of any of those witnesses specified in the affidavit of Shaw.

If is unnecessary therefore for us to examine the merits of the proposed new evidence, or the question of the applicant’s diligence, in order to decide upon the motion, because of the well established rule, which has been adhered to, we believe» ever since the case of Walker vs. Grimes (1st Hawaiian Reports, page 34), that applications like the present should be accompanied by the affidavits of the witnesses to the newly [166]*166discovered evidence, unless good cause is shown why such affidavits have not been obtained ; and in any case the names of the witnesses should be specified, together with the substance of what each of them would testify.

May 3d, 1859. Messrs. Blair and Harris, for appellant. Mr. Bates, for appellee.

The motion is refused.

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2 Haw. 165, 1859 Haw. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-will-of-hewahewa-haw-1859.

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