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

and fifteen years older tnau inc one aoOpteut
and who have no lineal descendants. The
husband and wife must join in the adoption.
The person adopted must be Of age, and
must, during his minority, have been aided
for six years by the adopter. unless he had
saved the adopter's life. The adopted person
takes his adopter's name, loses no right In
his own family, and inherits his adopter's
property; but the descendants of the adopteE
and not of the person adopted, succeed as
heirs to such property. fTit s, Sec. II
There are similar provisions in the Civil
Code of Justinian. 1t was from the desire
to prevent strangers from succeeding to the
estate, that the Roman will took effect im-
mediately, and was irrevocable as a deed Of
bargain and sale.
In all the communities Of men-family,
tribe, commonwealth, aristocracy, and the
rest-we find this same spirit of aggrandizing
the power of the association. The early law
of primogeniture, by which the eldest son
was heir, did not in fact disinherit the rest Of
the family, but he simply acted as their rep
NuStOhA hao thoo AetN
property within the family, there has been
variety in the rules of distribution. Polyga-
nous, homogeneous, warlike and peaceful
races have required different rules. Brothers
usually had the preference to grandchildren,
and males always controlled rather than fe-
males. The males descended from the same
pair came first, by Roman law, and were
called agnatic kindred. In this class, adopted
children were included. Then came cog
mates, whose relation was from females Of
kin, who were gentiles.
Distinguished writers, such as DR.. Taylor,
have regarded it US a moral, even religious
duty, that parents should leave sufficient
provision, if they can, for their children.
Such, certainly is the prompting of natural
affection; and there sound reasons why this
impulse should be encouraged. The accumu-
lation of property for posterity; the strength
ening of family ties and home influences
have much to do with the well-beiug of the
State, and the purity and happiness of life
among its members. Whatever tends to this
end has the sanction of moral law. Other
and equally distinguished writers, find in
civil enactments the origin OF the right Of
succession. Pothier writes: Pour etre ca
pable de succeder, il faut avoir retat civile,
IL faut jour de la vie ciyile;" and goes on to
mention certain classes, as foreigners not
naturalized, Frenchmen who have abjured
the realm, persons condemned for a capital
crime, and others of the religious orders,
who could not inherit. (Vol. s, Chapter
l, Sec. IL Montesquieu says: "La loi nat
urelle ordonue aux peres de nourrir leurs en-
fants, mais ellie oblige pas de faire heritiers.
lie partage des biens, les lois sur ce partage,
tout celia ne peut avoir etc regle
que par la societe" (Espr. des Lois, lib %,
chap. 6.) "The law of descents is a positive
regulation" (Reeves on Descents, Intr. 25.)
So says Paley Grotius thinks the law Of
succession has been exceedingly varied In
different countries and ages, and that the law
of nature is not of precise and absolute obli-
cation on this subject. (See Kent, 437.)
The object and result of Statutes are, to de-
fine aud declare such obligations of kindred
as the law will recognize. We have made
great advances over ancient customs In our
laws for distributing undevised property, and
concerning parental obligations. But the
parental duty to support the child in infancy,
and liability for the child's misdeeds, and the
filial duty of obedience, and Of supporting
aged and helpless parents, comprise the sub
stance of parental and flial duties and obli-
cations known to the English law. The
Roman law gave the child larger rights, but
the fathers power over the child not only
included the child's acquisitions during
the parents life, but extended to the pow
er of taking the child's life, "jus vita
necisque." By the common law, the hus-
band who took into his family the wife's
children by previous husband, is liable
for their support, iH loco PARENTS, but they
are not his heirs.
think that our statute is to be read In the
light of the English common law, in a con-
struction Of the technical legal expression,
''parental duties and obligations.
This Court decided in Robinson vs. Keeli-
kolani, 9 Haw p. 5l4, that there was Gus
tomary natural law Of inheritance In this
country; what that custom was In regard to
adopted children, or what its force would be
at the present day, does not enter into this
question. Our laws Of descent and of wills
were intended TO make that certain which
varied according to circumstances, and
think they would lose their force and definite
meaning If any but common law meaning
were put upon the words used in the statute
of adoptions. The intestate may have said,
~ will treat this child as my own" So he
may have said, "I will treat this woman as
my wife," but fails to marry her Does the
law regard the former as an heir, any more
than the children Of the latter? Certainly
not, the statutes of descents and wills would
be as much set aside in the one case as in
the other.
By force Of our own statutes, and by com
parison with the laws and customs OF other
countries, the contestant, as sister and sole
blood relative of the intestate deceased, is
her heir. Let judgement be entered accord
ingiy. A. F. Judd for Petitioner, R. G. Davis
for Contestant.
Appeal taken to the full Court In banco.
A QUESTION YoR LAwrERs.-suppose man
owns a skif; he fastens the skif to the shore
with q rope made Of straw; along comes a COW;
gets into the boat; turns around and eats the
rope; the skiff thus let loose, with the COW on
hoard starts down the streau and nm II. ras