The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1871-05-24
supreme Court. Ian.y rerm, IsaI.

I SuPrCnc SOurt, Suh Acrhh, 1874
lhku'erai, a. Hgpepa, (,cl and la, l-kns
band Of KapsRa rs, Ludu, a.
ALLEN. c. j.:
This is an action Of ejectment. Both partie:
agreeing to waive jury the cause was heard and
determined by the presiding Judge Of the Term
1t is in evidence that Kekoa, at the time of his
death had Royal Patent Of the estate in ques
,iou. aud that be died in lS4S The Plaintiff,
claim by Inheritance Without giving detailed
sketch Of the evidence, it is satisfactorily proved
that Hekoa had half brother named Kahuakn
and that the plaintiffs were his children, and Of
course. Hkalemi was his nephew and Eapeua his
ueice.
Kahalau was also brother Of Kekoa. married
but had no children. lie died after Kekoa, and
/ before his brother Kahuakai.
Were the case to rest here, it is clear that the
right Of inheritance would be with the Plaintiffs
and their title to the estate complete. But the
defendant says that he purchased the estate Of
Halili, the grandmother of Huohuia from whom
she inherited the property; and KuOhua was the
sou Of Haiaina, the nephew Of Hekoa The ev-
idenee is somewhat conflicting in respect to the
relationship Of Kaaiua to Kekoa, but the weight
Of evidence is that be was his nephew. He was
the son Of Maihi. who vas the sister Of Hekoa.
This view Of the case is strengthened by the eyi.
deuee that Eaiamo, from whom the defendant
claims had possession Of the property in lsIs,
after the death Of Kekoa, and this possession
continued in direct line of heirship. from Kaiamo
to Halili, who conveyed it to Luau, the defend
ant. 1t is coutended further. that the defendant
has title by prescription. When Hekoa died,
his wife Huku survived, and had a right Of dover
under the statute Of 1916. 1t is not clearly prov
ed when she died but the evidences is not satisfac-
tory that Eailmo and his successors had entire
possession Of the estate for twenty years. claim
ing the same. 1t is in evidence, that Euku was
the wife Of Kekoa-
1t is conieuded further. that Hapipiilani who
was the son Of Huku, would inherit his mother
moiety, which, by the law of inheritance, she
would have from her husband. Her interest
being only that Of right of dover, expired
ed at his death Her husband KekOa died in
ISIS, aud she, by the law then in force, had only
4 right Of dover in his real estate. The law of
descent, which gives to the wife one half of the
estate when there are no children, was passed in
1850; therefore, she could not inherit Her right
was merely that of dOweri hence, Kapiipiihni
had no right Of inheritance.
l.. IL - A.
question became vested in RaliIi, through judg-
meui of the Probate Court, deereeins said pro-
perty to her. and by whom the same was convey
ed to the defendant
It's 4 sound principle of law. and one which
will commend itself to the sense of justice of all
men, that one cannot be barred personally. by ju-
dicial proceedings, without express or construc-
tive notice. There was not sufficient notice in
this case, as appears by the record The inten-
ton Of distribution was not set forth in the no
tice; therefore, these parties the plaintiffs in this
suit, are not barred by the decision Of the Pro
bate Court Is to their legal right Of inheritance
HIam correct in my view of the evidence, the
heirs of Kahaakai and Maihi, are entitled to the
propert! IN equal proportions: that Is, Mikalemi
and Kapena, heirs of Kahuakai are entitled to
one half and the heirs of Maihi or their grantees
are al,o entitled to one half and the Court so
adiadge.
The Court having announced the foregoing
opinion, and before final Judgment was rendered
the counsel for the plaintiffs moved the Court to
amend Their complaint by alleging claim for an
uniiviizd half Of the premises instead Of the
whole, to which the defendants counsel asseuted
whereupon judgment was rendered for the plain
tifs for Al undivided half Of the premises.
Costs to neither party.
Mr. r Il. Stanley for plaintiffs.
Messrs- Austin and Dole for defendants
Honolulu, April 10Th. ISL.