The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1871-09-20
supreme Court, July Term, Is7I.
IN BANCo-ALLEN. c. j., HARrwEIL, j.
Estate of Kailikanoa, deceased intessafe.

Estate Of KdiiikdoG, deceased inteStdfe.
Appeals from decree at Chambers must be
taken within ten days by Rules of Court, or they
are invalid Judgment on any subsequent verdict
would violate the rights of original parties not
represented in such appeal Legitimacy is fixed
by law existing ut the time of birth. P. Nahao-
lelua was appointed Administrator on the said
estate Nov. &c 1862. by J. Wight, Circuit Justice
of Hawaii. Dec. g. 1870, he fled petition be.
fore the Chief Justice of this Court in Probate,
alleging that in 1866 he sent an account of his
administration to said Circuit Justice. and in
1857 was informed by D. Naiapakai, successor of
said Justice, that he had received said account
and would advertise it for hearing but had not
done so, and had now ceased to be the Cir
cult Justice; wherefore. the Petitioner prayed
for hearing on his accounts and that the heirs
OF said estate be declared At hearing Dec.
81, the account was approved, the Administrator
discharged Jan. q, and the Court decfeed that
Nahaolelua was entitled to inherit one undivided
half, and Hoomana W. the other half of said
estate. This decree was opposed by Mrs. Hama
kaulani Holt, and by John A. Simmons From
this decree, Mrs. Holts counsel, Feb. 4. fled a
notice of appeal, and at the April term moved
that the following issue of fact be tried by jury,
viz: Whether P. Nahaoleua, the petitioner,
is entitled TO inherit the estate of the said Kali
kanOa decedent by virtue of the statutes of de-
scent of property in this kingdom The jury
rendered the following written verdict, viz
(translated,) "0n considering the case of Hama
kaulani and o. j. Holt vs. p Nahaolelua eleven
of the jurors approve the title of HanakaulaD
and o. J. Holt and one, that Of P. Nahaoelua."
Nahaolelua's counsel excepted to the verdict as
contrary TO evidence and not responsive TO the
issue. The bill of exceptions states that the evi
dence on both sides was, that Opuanapeau lk)
and Keolewa, IVY we're the parents of Kapehe
the mother of Kailikanoa by Kabai and after
Kahais DEATH mother of Huakiui by Kulaumoa;
that said IIuakini was petitioners half brother,
begOtten by the same father from Keauhuhu
while Kapehe was living with him undivorced,
and that this occurred in ancient times that
Kapehe second, daughter of K Keaka, sister of Ka-
pebe FIRST, is still living, being of collateral
branch of the same degree with that Of Mrs.
Holt; also, that Mrs. Holt is granddaughter of
Paele. sister of Kapehe first, mother as above
stated Of Huakini, the person last seized of said
estate.
R. g. Davis for the exceptions.
A. F. Judd contra.
HARTwELL, j.. The appeal was not taken un-
til more than ten days after the decree, therefore
the subsequent proceedings are invalid under the
rules of this court, as to all persons not parties
HOomana and Simmons were parties at the first
and are not represented in or Affect
ed by the appeal.
Mrs. Holt is not sole heir in any event. as Ia
pehes claim is of like degree, and Hoomana is
heir of one half Of the estate, whether Nabaole-
lua or Mrs Holt and Kapehe have the other half
There is no propriety in partial issue like this,
and no Judgment could he pronounced on tae YER
dict which does not necessarily violate the rights
of others. This is true, whatever the verdict.
But if the appeal we're duly taken, the issue cor
rect, and the verdict responsive to the issue ard
sustained by the evidence, the jury must be deem
ed to have misconceved the law. For statutes
of marriage and descent we're not enacted when
Nahaolelua was born, and his Legitimacy cannot
be determined by subsequent legislation.
But as the appeal was not duly taken, and as
the issue is incorrect, the verdict should be
set aside, the appeal dismissed, and the parties
remtted to their former rights.
Verdict set aside. appeal dismissed