The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1871-09-02
SATURDAY. SEPTEMBER ..


The public confidence in the Judiciary Depart
ment of the Government of these islands, (and
when we speak of the judiciary we mean the
Supreme Court) is firm and abiding. Whatever
dictum emanates therefrom is received unquestion-
ingly as law. Thus, in the important matter of
the titles to lands, by heirship, it has always
been considered that whoever was declared by the
Probate Court or Judge as the heir of any de-
cedent, became by such decree, the unquestioned
owner Of the estate. Until now, no one has ever
raised a doubt as to this. But in the last Gazette
appears the report of the case of : : the Estate of
Hannah Vaughan, deceased, intestate," with the
decisions of the Justices preferred to elsewhere,)
and in that of the Second Associate, occurs a pa
ragraph which plainly indicates the opinion of
His Honor that new legislation is imperatively
needed in order to adjudicate and settle finally,
titles in land. About ten years ago, if we re-
member rightly, a very lengthy and deliberately
prepared bill was brought forward in the House
of Mobiles, having for its object the regulation Of
proceedings in probate matters. For some reason
the importance of the bill was not then recog-
nlzed, for it slumbered in committee, and was nev-
er acted upon. In the following paragraph,
which we quote from the words of Mr.. Justice
Hartwell's decision in the above mentioned case,
he forcibly presents the necessity of Legislation
on the subject.
Before coming to the main question, 1 can not re-
frain from expressing my entire uncertainty of the
Jurisdiction of this Court to make a decree of general
heirship in any case, except collaterally in deciding
on the right to administer, or on the distribution Of
personally left in the administrator hands, or in the
various collateral forms in which such questions may
arise, as for instance in proving title in an action of
ejectment or suit in Equity. The Constitution limits
the judicial power to eases in law and equity aris-
ing under the Constitution and laws of this King
DOM The probate powers of this Court are found in
Statutes which authorize the appointment, removal.
and supervision of executors. administrators and
guardians, the admeasurement of dover and partition
of real estate, and to g. do all such other acts as may
be necessary to carry into full effect all the powers
which are or may be granted to 1t by the COnstitu-
ton and laws OF the Kingdom" None of these pro-
bate powers expressly or by implication authorize q
general decree of heirship. Even the general equity
power of Quia Ifmet, or of Injunctions in Bills Of
Pence, to quiet titles, appears to exist in other coun-
tries only by Statute, in cases where there are no ac-
tual claimants. l regard this as one of the most Sc
rious questions for the Legislature, in order that a
sure, definite and certain procedure may be fixed
whereby titles in land may be adjudicateda and settled
finally. But the point of jurisdiction is not presented,
and is suggested merely from IL hope that at the ap-
preaching session of the Assembly, the diversity of
view on this matter may be set at rest by Statute.