The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-11-24

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By Sec. s, Art. 9, Chap. Z, Part 5, of the
Act first referred to, lands held under royal
patents shall never revert nor escheat, except
by attainder of high treason. nor be diverted
from the patentee or his assigns, except BY
sale under order of Court, for non-paymeut
of taxes, "or for utter default of heirs of the
testate or intestate owners; but the pa
tented lands shall descend 10 The lineal or co.,
lateral heirs" &C., unless otherwise devised
by will
Sec. l, Chap. 50 of the Civil Code, en-
titled, "Of the Descent of Property, both
Real and Personal" reads thus: "When-
ever any person shall die intestate, within
this Kingdom, his property, both real and
personal, of every kind and description, shall
descend to and be divided among his heirs,
as hereiIsGtter mentioned This chapter.
throughout, refers to children as tissue"
kindred" and clinical descendants" Sec.
145l, 10, provides that, If the intestate
leave no kindred, his estate shall revert to
the Hawaiian Government" This chapter
NSSAAiOS All AhN Known
to the laws of this country. 1t expressly
provides for posthumous children, and for
illegitimate children, the latter class inherit
ing only from the mother; but there is no
reference to adopted children. Sec 144S
provides that if the intestate " shall leave no
issue, }" nor father nor mother, his estate shall
descend, one half to his widow, and the other
half to his brothers and sisters. The last
section of the chapter defines "Issue' to
mean, 'the lawful, liaeal descendants of the
ancestor"
By the Act approved Aug. "a, 1860, chill
dren born in wedlock take the fathers name,
and all children under the age of twenty
years adopt it, and alt shall not be lawful
to change any name adopted or conferred
under this law" This gives no power to
change the name of the child adopted.
am unable to find anything in the statute
giving to adopted children the right to in
herit as children of the blood, unless it be
found in the words of the original Act con-
eerning adoption, by which parents are made
AAoSAS " thS HeaiShtaA uuAlOS uuu OOllEd-
tions." That statute is expressly repealed
by the Act of May II, 1859, but it was in
force when the articles of adoption in this
case were executed; al which time, also, the
present statutes of descent and of wills were
in force, but the sections of the Civil Code
concerning the Parental and Filial Duties
were not then enacted.
Is the devolution of property from parents
to children one of the "parental duties and
obligations?" This requires definition of
the expression "duties and obligations" If
we mean such as are imposed by statute,
such a transmission of property is clearly
not required. The statute gives the power
to devise by will, and prescribes the formal
tiles requisite for valid will, but does cot
restrict the power of disinheriting blood rela-
tives. If no will be made, the statute pre-
scribes what kindred shall inherit, what inter
est remains to the husband or wife, and what
provision shall be made for posthumous and
illegitimate children. The statute defines
tissue" as lineal descendants. The estate
escheats, or reverts, in default of kindred
That word can mean only a blood connec-
tion; it is derived from, or is analogous to,
the Greek ge'inGO, and Latin gigno GNAsco.
We look in the statutes in vain for a con-
struction of parental duties and obligations
which shall include adopted children with
heirs of the body, or which gives articles of
adoption the force of a valid will Shall we
find such construction in some other law,
religious, moral, customary or natural, which
the statute may have contemplated?
To increase the family power and perpetu-
ate its name seems to have been regarded as
as a matter of first importance, from the
earliest times. Abram was anxious lest one
born in his house should be his heir, and
Eliezer of Damascus the steward of his house
The larger portion, which in the Mosaic law
fell to the elder son, was called his "birth-
right" The blessing of Jacob was the So
lemnity Of declaring him the heir. Joseph's
brethren sat before him, "the irst-born ac-
cording to his birthright." By the Israel
itish rules, the estate went first to the son, and
if no son survived, to the daughter, and if
there were no children, to the brother, TO the
paternal uncles next, and finally to the near
est kinsman. To prevent the daughters shares
from going out of the tribe, inter-marriage
was encouraged, 'that the children of Israel
may enjoy every man the inheritance of his
fathers"
There is significance in the alusion to the
younger son in the Parable, who claimed,
during his fathers life time, the portion of
goods that fell to him.
The customs and laws in patriarchal So
ceties are better understood when the ten
ure is examined on which property was held
1t seems to have been thought that no one,
not even the head of the family, had right
to ALLEVIATE the property ont OF the family or
tribe, except by the consent Of all. Primi-
tive society knew nothing Of separate, indi-
vidual ownership, as now understood. The
Hindoo son at his birth had vested right in
his fathers estate, which interest could be
partitioned off against the fathers consent
The Roman Paterfamilias was little more
than steward Of the family possessions. The
German Aaod from which comes our word
allodial, or land held by indefeasible right,
was the joint property of father and children
The Highland clans are said to have had, even
until recently, voice and an interest in thu
disposal Of the lords or chicftains' posses
sions Among the Russian villages, and In
some ofthe Indian tribes, a similar communi
ty of interests is said to exist
The custom of adoption was probably du,