For making any order for the sale of real estate, and for every other necessary order, one dollar.

For taking, stating, and determining upon an account rendered, or deciding the distribution of personal estate, one dollar for the case. For hearing and determining any objection to the appointment of an administrator, or any application for his removal, or for the removal of any guardian, or any application to annul the probate of a will, one dollar.

For hearing and deciding any application to lease, mortgage, or sell real estate, three dollars.

Searching records of office and giving certificate, one dollar.

For every appointment of commissioners to admeasure dower or to make partition of real estate, two dollars.

For hearing and determining upon the report of such commissioners, two dollars.

All actual disbursements for printing.

For receiving and distributing any money on the sale of real estate, a commission of five per cent on all sums up to the amount of five hundred dollars and two and a half per cent on all sums over five hundred dollars.

Fees of executors, administrators, and guardians.-Executors, administrators, and guardians shall be allowed the following commissions upon all moneys received and accounted for by them, that is to say: Upon all moneys received representing the estate at the time of the institution of the trust, such as cash in hand and moneys realized from securities, investments, and from sales of real estate and personal property other than interest, rents, dividends, and other profits coming due after the inception of the trust, two and one-half per centum.

Upon the final payment thereof, or any part thereof, two and onehalf per centum.

Provided, however, that no commissions shall be allowed as for final payments of such moneys, except upon amounts actually expended and upon balances paid into court or to the parties thereunto entitled upon the final settlement of the services for which such executors, administrators, or guardians shall have been appointed and qualified. Upon all moneys received in the nature of revenue or income of the estate, such as rents, interest, and general profits, ten per centum for the first thousand dollars, seven per centum for the next four thousand dollars, and five per centum for all amounts over and above the first five thousand dollars.

Such commissions of ten, seven, and five per centum to be allowed upon each accounting when made, but not oftener than once a year. These provisions shall apply as well to all future accounting in existing trust estates as to new trusts.

Fees of commissioners and appraisers.-For every day's actual and necessary attendance in admeasuring dower, partitioning real estate, or appraising property, five dollars, and all actual disbursements for surveying, plans, etc.

Witnesses', chief sheriff's, or sheriff's fees shall be such as the court or judge shall deem just and reasonable.

In all probate matters where the value of the estate to be administered upon shall not exceed one hundred dollars no costs shall be charged except those of actual disbursements; and where the value of the estate shall be more than one hundred dollars, and not exceed the value of five hundred dollars, the judge shall have power to diminish

the costs, in his discretion, whenever the circumstances of the parties interested shall seem to demand it.

All judges', justices', and clerks' fees, provided for in this chapter, shall be accounted for quarterly to the treasurer for the benefit of the public treasury.

§ 1494. The justices of the supreme court shall have power from time to time to revise the costs and fees provided in this chapter, but not to increase the same; and also to prescribe such costs and fees as they shall deem reasonable in all cases not therein provided for.

§ 1495. Costs shall be allowed to the prevailing party in judgments rendered on appeal in all cases, with the following exceptions and limitations:

1. If the defendant against whom judgment is rendered appeal, and judgment be rendered in his favor in the appellate court, and the amount recovered in the court below be reduced one-fifth or more, costs shall be awarded to the appellant.

2. If the defendant in whose favor judgment is rendered shall appeal, and he shall not recover in the appellate court at least one-fifth more than the amount recovered below, costs shall be awarded to the appellee.

3. If the plaintiff in whose favor judgment is rendered appeal, and he shall not recover in the appellate court at least one-fifth more than the amount recovered below, costs shall be awarded to the appellee. 4. In all other cases, the party recovering any sum shall be entitled to costs.

§ 1496. Whenever costs are awarded to the appellant, he shall be allowed to tax as part thereof the costs and fees paid in the lower court on taking the appeal, in addition to the costs of the court appealed to. And if, upon an appeal, a recovery for any debt or damages be had by one party, and costs be awarded to the other party, the court shall set off such costs against such debt or damages, and render judgment for the balance.

NOTE TO CHAPTER 96.

SS 1484-1486 are C. L., §§ 1277-1279. §§ 1487-1491 are S. L. 1872, ch. 29, C. L., p. 415. § 1492 is C. L., § 1280 amended (witnesses' and jurors' fees), S. L. 1882, ch. 24, and S. L. 1884, ch. 30. § 1493 is C. L., § 1281 amended (fees of executors, administrators, and guardians), S. L. 1892, ch. 98. § 1494 is C. L., § 1282. §§ 1495, 1496 are C. L., SS 1013, 1014.

Cases in Hawaiian Reports:

1485. Lopez v. Ahman, 7 Haw., 2.

1486. Barthrop v. Kona Coffee Co., 10 Haw., 398.

1491. Bowler v. Board Immigration, 7 Haw., 716.

1492. Rose v. Smith, 7 Haw., 3; Spreckels v. Giffard, 10 Hav.., 462.

1493. Est. Long, 7 Haw., 372; Est. Banning, 9 Haw., 456.

SS 1495, 1496. Nakanehia v. Kailanu, 5 Haw., 179; Kamalu v. Lovell, 5 Haw., 181.

CHAPTER 97.

EQUITY, ADMIRALTY, AND PROBATE JURISDICTION.

EQUITY JURISDICTION.

§ 1497. In addition to the jurisdiction in equity otherwise conferred, the several circuit judges shall have original and exclusive jurisdiction of every original process, whether by bill, writ, petition, or otherwise, in which relief in equity is prayed for, except when a different provision is made, and may issue all general and special writs and

processes required in proceedings in equity to courts of inferior jurisdiction, corporations, and individuals when necessary to secure justice and equity.

§ 1498. The several circuit judges may hear and determine in equity all cases hereinafter mentioned, when the parties have not a plain, adequate, and complete remedy at the common law, that is to say:

Suits for the redemption of mortgages or to foreclose the same. Suits and proceedings for enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate.

Suits for the specific performance of contracts by and against either party to the contract and his heirs, devisees, executors, administrators, and assigns.

Suits to compel the delivery of goods or chattels taken or detained from the owner and secreted or withheld so that the same can not be replevied.

Suits for contributions by or between devisees, legatees, or heirs, who are liable for the debts of a diseased testator or intestate and by or between any other persons respectively liable for the same debt or demand, when there is more than one person liable at the same time for such contribution.

Other cases in which there are more than two parties having distinct rights or interests which can not be justly and definitely decided and adjusted in one action at the common law.

Suits between copartners, joint tenants, and tenants in common, and their legal representatives, with authority to appoint receivers of rents and profits, and apportion and distribute the same to the discharge of encumbrances and liens on the estates or among the cotenants.

Suits between joint trustees, coexecutors, and coadministrators, and their legal representatives.

Suits concerning waste and nuisance, whether relating to real or personal estate.

Suits upon accounts when the nature of the account is such that it can not be conveniently and properly adjusted and settled in an action at law.

Bills by creditors to reach and apply in payment of a debt any property, right, title, or interest, legal or equitable of a debtor, within this Territory, which can not be come at to be attached or taken on execution in a suit at law, against such debtor.

Cases of fraud and conveyances or transfers of real estate in the nature of mortgages.

Cases of accident or mistake.

Suits or bills of discovery, when a discovery may be lawfully required according to the course of proceedings in equity.

And shall have full equity jurisdiction, according to the usage and practice of courts of equity in all other cases where there is not a plain, adequate, and complete remedy at law.

§ 1499. Cases in equity may be commenced by bill or petition with a writ of subpoena according to the usual course of preceedings in equity, or inserted in an original writ of summons, or of summons and attachment, or by declaration in an action of contract, or tort, as the case may be, with or without an order for the attachment of the property or arrest of the defendant, and shall be returnable at the terms of the court or on the rule days established by the court.

The material facts and circumstances relied on shall be stated with brevity, omitting immaterial and irrelevant matters.

§ 1500. If a discovery is sought, it may be by such bill or petition, or by being made part of such declaration or by interrogatories.

Answers thereto shall be made without unnecessary delay, and questions arising thereon be determined by the rules applicable to bills of discovery.

§ 1501. A defense in equity shall be made by demurrer, plea, or

answer.

A demurrer shall be accompanied with a certificate that it is not intended for delay and an answer shall be supported by oath, unless waived by the adverse party.

EQUITY AND PROBATE MATTERS.

§ 1502. All applications for the foreclosure of any mortgage of real or personal property; for the abatement of nuisance, public or private; for the annulment of charters and other corporate rights, or for restraint or prohibition in the exercise thereof; for proclamation scire facias; for sequestration of property upon legal or equitable grounds; for divorces and separations; for the affiliation of bastards; for the partition and division of real property; for the admeasurement of dower; for enquiries of lunacy or insanity; or for enquiries de ventre inspiciendo to determine the right of property, shall be by sworn petition addressed to some court, or justice, having jurisdiction thereof.

§ 1503. Upon the filing of such petition, the court or judge shall determine, ex parte, upon the propriety of granting the process prayed for. In cases not demanding secrecy or occasioning doubt, the court or judge may, before issuing process, grant an order to show cause and make any interlocutory order in the matter which may appear necessary to the ends of justice.

§ 1504. When process is issued in any such case, it shall be served by delivery of a copy of the petition and of the summons to the defendants, or in case they can not be found, by leaving such copy with some one upon the premises involved in the controversy, or in such other manner as the court or judge may direct. The officer charged with service of the process shall also, if so directed by the court or judge, publish in the Government Gazette a notice of such suit or proceeding, calling upon all persons interested to appear and show cause against it, at the time and place appointed for the hearing.

§ 1505. The court or judge may assess the amount due upon mortgages, whether of real or personal property, without the intervention of a jury, after hearing of the parties and adduction of the proofs, and shall order judgment or decree to be entered for the amount awarded, and execution to be issued thereon, subject to appeal in all cases except where the judgment or decree is rendered by the supreme court.

§ 1506. All prior and subsequent mortgage creditors, whose names. are or can be discovered by the party foreclosing a mortgage, shall be made parties to his application, and if discovered before the day appointed for hearing, they shall be served with a copy of the petition. § 1507. Mortgage creditors shall be entitled to payment according to the priority of their liens, and not pro rata; and decrees of foreclosure shall operate to extinguish the liens of subsequent mortgages of the same property, without enforcing prior mortgages to their right of recovery. The surplus, after payment of the mortgage foreclosed, shall be applied pro tanto to the next junior mortgage, and so on to the payment, wholly or in part, of mortgages junior to the one assessed.

§ 1508. The mortgagor, or any subsequent mortgagee, may appear and answer matter of fact or of law, pleadable in defense to the application or petition for foreclosure, and shall be allowed to show any matter in legal or equitable avoidance of the mortgage.

[SS 1509-1514.]

§ 1515. Matters of probate and of administration shall be heard and determined by the judge or court having jurisdiction thereof, without the intervention of a jury.

WHEREAS section 1515 has been held not to permit an appeal to a jury, on the validity of any will, or testamentary devise, or any facts touching the descent of property, when such will or testamentary devise is a matter of investigation in probate; Therefore, Be it enacted, etc.:

1516. That from and after the date of the passage of this act, 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 or supreme 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.

§ 1517. Whensoever an appeal may have been taken by the party against whom judgment has been rendered by the judge of probate at chambers, the appellee may likewise move the court that any issue of fact may be tried by a jury, and his motion shall not be denied.

§ 1518. On all appeals from a decision of a probate judge at chambers, whether the same be tried before a jury or before the court, without the intervention of a jury, the record of the court below may be read as testimony, and either party shall be at liberty to introduce such further testimony as he may be enabled, and also to reexamine orally before such court or jury on such appeal, any witness or witnesses whom he may have produced and examined on the original hearing at chambers.

§ 1519. In all cases in which any person, whether a citizen of this Territory or otherwise, shall decease, in any part of this Territory, leaving a will in this Territory of his or her property within its jurisdiction or abroad, or having died abroad, and there left a will bequeathing or disposing of his or her property in this Territory, it shall be incumbent upon the person named as executor of such will, or on the person to be benefitted thereby, or on the person in whose charge the same was deposited or some person in behalf of those interested, to apply to some judge of a court of record, at chambers, for probate of such will, and for citation of the witnesses thereto, and of the next of kin of the deceased.

§ 1520. It shall in like manner be incumbent on the person entitled and desirous to administer, according to the priority of right hereinafter prescribed, upon the estate of any person dying intestate in this Territory, and leaving property therein, or dying abroad and leaving property in this Territory, to apply by petition to some judge of a court of record, at chambers, for power to administer thereon.

§ 1521. All applications for probate of wills, or for letters of administration, shall be sworn by petition, in which the party shall set forth circumstantially all the facts upon which his application rests.