
    JOSEPH ALOY v. COOKE TRUST COMPANY, LIMITED, AND THELMA MOORE AKANA, EXECUTOR AND EXECUTRIX OF THE ESTATE OF DAVID Y. K. AKANA, DECEASED.
    No. 2597.
    Submitted July 13, 1945.
    Decided September 12, 1945.
    Kemp, C. J., Peters and Le Baron, JJ.
   OPINION OP THE COURT BY

LE BARON, J.

This is an appeal from the decision and decree of the circuit judge at chambers in equity sustaining the appellees’ demurrer to appellant’s amended -petition to annul the decree which admitted to probate the will of Amoy Alum a Amasiu, deceased.

There are but three specifications of alleged error, each directed toward a certain ground of the demurrer upheld by the circuit judge as the premise of his decision at a hearing in which appellant by reference made the record of probate a part of the amended petition. The specifications are that the circuit judge erred in holding (1) that the amended petition did not state a cause in equity, (2) that the doctrine of res judicata applies and (3) that appellant is guilty of laches.

It is not necessary to detail herein the allegations of the amended petition which purport to state a cause in equity. Briefly, they are to the effect that the will was fraudulently prepared and executed and that the testimony in respect to its preparation and execution, upon which the decree admitting the will to probate was rendered, was false, the issues of which were presented at the time of probate by way of contest upon substantially the same grounds as evidenced by the record of probate. Determinative of the appeal, this court is of the opinion that such do not constitute grounds of equity jurisdiction and that appellant’s first specification of error is untenable.

In Akeau, v. Iakona, 13 Haw. 216, it was held that equity cannot set aside or annul decrees or judgments admitting wills to probate for alleged fraud in the execution of the will probated. Undoubtedly the general rule, established in both England and America, is that a court of equity will not entertain jurisdiction of a bill to set aside a will or the probate thereof on any ground of intrinsic fraud, the principal reasons assigned by equity courts for not entertaining bills on questions of probate being that the probate courts themselves have all the powers and machinery necessary to give full and adequate relief and that their decrees are final and conclusive and not subject, except on an appeal to a higher tribunal, to be questioned in any other court. (See Case of Broderick’s Will, 88 U. S. 503 [21 Wall.], 22 L. ed. 599; Ellis v. Davis, 109 U. S. 185, 27 L. ed. 1006; Simmons v. Saul, 138 U. S. 139, 31 L. ed. 1051; State of California v. McGlynn, 20 Cal. 231, 266; Kerrich v. Bransby, 7 Bro. P. C. 385, 3 Eng. Rep. R. 281 [1727]; Webb v. Claverden, 2 Atk. 121, 26 Eng. Rep. R. 656 [1712] ; Allen v. M’Pherson, 1 H. L. 191 [1817-18].)

Prom the foregoing it is evident that the circuit judge did not err in holding that the amended petition, which seeks to annul the decree of probate on alleged grounds of fraud relating to the matter tried and issues determined in admitting the will to probate, did not state a cause in equity. It should be noted that, if seasonably commenced, an application to annul or set aside a decree of probate is purely a probate proceeding in which the court rendering the decree has ample power to give plain, adequate and complete relief. (See Estate of Brown, 25 Haw. 70, 75.)

W. O. Achi for petitioner-appellant.

Been & K’ai and M. K. Ashford for respondentsappellees.

Any error which may have been committed in holding that the doctrines of res judicata and laches are applicable in a court of equity to the cause stated by the amended petition is entirely harmless and nonprejudicial, the cause not being cognizable in equity and the holding being merely alternative to the one upon which the sustaining of the demurrer was correctly based. Furthermore, the error, if any, was invited by the appellant when he incorporated into his amended petition the record of probate which reveals that he appeared as a party of record before the probate court claiming to be the sole heir at law of the deceased and contested the probate; that he took no appeal whatsoever from the decree of probate which in addition to admitting the will overruled his contest; that more than four years later he petitioned the probate court to revoke the decree of probate and took an abortive appeal from its decree dismissing his petition. (See Estate of Amasiu, 36 Haw. 394.) A comparison of the record of probate with the record in equity shows that the grounds of the two attempts in probate to defeat the probate of the Avill are substantially the same as those of his amended petition in equity and that the purpose of the amended petition is identical to that of his petition in probate. The comparison also shows that the present cause was instituted in equity more than sis years after the decree sought to be annulled Avas rendered in probate. For these reasons appellant’s second and third specifications of error have no efficacy and merit no further appellate consideration.

Decision and decree affirmed.  