
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1872.
    
      Allen, Ch. J., Hartwell and Widemann’, J. J.
    
    Kauhi, Appellant, vs. Keoni Liaikulani, Appellee,—in the Estate of Liaikulani, Deceased Intestate.
    A new trial may be had for newly discovered and material evidence.
    The adjudication of matters not requiring adjudication is not conclusive on the right of parties.
    No estoppel results from the acts of a party unless their meaning is clear, and the party was aware of the right they affect.
    In November, 1852, administration on the intestate’s estate was granted by the Probate Court in Honolulu to the appellant’s parents,' Kalawa and Mahiai, the latter of whom was the intestate’s sister and died in 1862. They were also appointed guardians of the appellee as the supposed son and heir of the intestate, on the testimony of the said Kalawa and others to that effect. In June, 1871, on petition by the appellee for final distribution of the estate, the appellant claimed to be heir as next of kin, and denied that the appellee was the intestate’s son. The Court decreed in favor of the appellee, but the jury on appeal found for the appellant. The record of the probate proceedings of 1852 was submitted to the jury, the Court declining to rule that they were conclusive on the appellant’s rights. The appellee moved in arrest of judgment on the ground that the appellant is estopped by this record from denying that he is the intestate’s son; and also moved for a new trial on the ground of newly discovered evidence. Exceptions were taken to the denial of these motions.
   Hartwell, J.:

The decree of a Court of competent jurisdiction is generally conclusive in matters which required to be adjudicated as a basis for the decree. In granting administration, the intestacy of the decedent requires to be determined, and that fact when so determined should not afterwards be questioned by parties to the proceedings. But if the Court should go on to decide other matters not then requiring adjudication, as for instance who the heirs are, such adjudications would have no conclusive effect. In appointing a guardian, the Court has only to find prima facie cause for such appointment. But that in any ex parte or preliminary proceedings in probate, there is a final adjudication of heirship, kindred or legitimacy of birth or marriage, is more than can be admitted. Such questions are always open on hearings for final distribution. There is then no formal adjudication which is conclusive on the status of the appellee.

But a party may preclude himself from denying what he has once asserted to be true, on the principle of equitable estoppel, whereby a man can take no advantage from his own wrong. In order that the representation or act of a party shall operate as an estoppel, it must be clear that it was made advisedly, or at least “negligently in disregard of the rights of others who are reasonably authorized to rely upon them.” Per Bayley, J. Heane vs. Rogers, 9 B. & C., 577. The intention to influence another and the influence must be made clear. Welland Canal vs. Hathaway, 8 Wend., 480; Dezell vs. Odell, 3 Hill, 215; Saunders vs. Robinson, 7 Met., 314; Freeman vs. Cooke, 2 Exch., 654; Watkins vs. Peck, 13 N. H., 360; Thayer vs. Bacon, 3 Allen, 164; Barker vs. Binninger, 14 N. Y., 270; Copeland, 28 Me., 529. The foregoing cases fully illustrate the view that no one is thus estopped by his own acts or words, unless he was aware of the right of which he is said to be estopped, and that an estoppel does not arise from acts or words of which the meanixxg and significance are doubtful. The very doubt concerning the meaning of the acts alleged as axx estoppel -requires to be coxxsidered by the jury, who might perhaps be instructed concerning their conclusiveness provided they were satisfied of the origixxal intent.

A. E. Judd for the appellant.

W. C. Jones for the appellee.

Honolulu, February 21st, 1872.

The appellant’s parexxts thought that the appellee was the intestate’s son and heix’, and they took the appointment as his guardians oxx the strength of this belief. B.ut by native customs and ideas concerning adopted children, they would have taken the same course if the appellee were merely adopted as a son and heir, as if he had been the child of the blood. We can not say then, that the appellaxxt’s parexxts have thereby estopped him fx’onx showing the truth in the matter, although the record is strong evidence against him. The exception to the denial of the motion ixx arrest is accordingly overruled.

The affidavit of xxewly discovered and material evidence shows that Kauhi, alleged by the appellant’s witnesses to be the true father of the appellee, is ready to testify that he is not the father, and that this evidence was xxot discovered until after the trial. That this is xxew and material evidence, must-be admitted. It is xxot clear that the appellee used due diligexxce to ascertain eoxxeexixixxg this testimony, but ixx view of the great conflict of evidence ixx the case, the doubt about the exercise of proper diligence may be givexx in favor of the appellee, and a new trial ordered.  