The Hawaiian gazette., 1871-08-30

under the will Of her husband. Capt Joseph
Maughan. The Court granted no administration
there appearing TO be no sufficient cause therefor
but made an interlocutory decree, Nov 10, 1869,
that the petitioner is not entitled to the said
estate by virtue Of the said written articles OF
adoption, but tha. the contestant. Nancy Writ,
was the intestates sole heir at law From this
ruling, made by Hartwell, j.. in probate. appeal
was taken to this Court ia 6dsoo, and heard
at last January Term.
In view Of the importance Of the questions
thus presented, have carefully reviewed and re-
considered my first impression on them, and such
further arguments as have been presented but
the reasons which then convinced me still apply,
and l am unable to find any reason, resting in
law, for sustaining the doctrine that articles Of
adoption are equivalent to wills, nor can find
any law, or statute, whereby adopted children
inherit as do legitimate children Of the blood.
Before coming to the main question can not
refrain from expressing my entire uncertainty of
the jurisdiction of this Court TO make decree
of general heirshp in any case, except coaterally
in deciding on the right to administer or on the
distribution of personality left in the administra-
tors hands, or in the various collateral forms in
which such questions may arise. as for instance
in proving title in an action Of ejectmeut or SUIT
10 Equity. The Constitution limits the judicial
power to leases in law aud equity arising under
the Constitution and laws of this Kingdom"
! The probate powers Of this Court are found in
Statutes which Authorize the appointment re-
moyaL. and supervision Of executors administra-
tors and guardians, the admeasurement Of dover
and partition Of real estate and to do all such
other acts as may be necessary to carry into full
effect all the powers which are or may be granted
to it by the Constitution and laws Of the King
DOM" None Of these probate powers expressly
or by implication authorize q general decree Of
heirshiP. Even the general equity power Of
/ Gaia 1imst, or Of Injunetions in Bills Of Peace
to quiet titles, appears to exist in other countries
only by Statute, in cases where there are no
actual claimants. ] regard this as one Of the
most serious questions for the Legislature, in
order that sure definite and certain procedure
may be fixed whereby titles in land may be ad-
judieated and settled finally. But the point of
jurisdiction is not presented, and is suggested
merely from hope that at the approaching
session of the Assembly, the diversity Of view
on this matter may be set at rest by Statute.
In regard to rights by inheritance. they are
fixed and ascertained, in other words they exist
for the 6r-t time when the ancestor dies, or when
the instrument call il a will or contract, is exc
cuted under which such rights are claimed, and
10 either case hey are such rights only as are
d.tiasd By the stHHe ldlc Of the realm. If
person claim to be heir at law of one deceased
intestate. of course the claim can not be made
before the ancestors death, so that it may appear
what heirs survive. If he claim under q written
instrument, that instrument can be nothing more
or less than will, and in order to its validity it
must conform to all the statute requirements Of q
will. regardless of the wishes, views or expecta-
tiOus of those who executed or are interested in
the instrument. document drawn and executed
in all respects asa will, but with only one sub
scTibing witness is utterly worthless for the pur-
pose of a viii or for any purpose, and this is in
spite of the intention of parties however clearly
expressed, aud for the simple reason that such is
statute law Of the land Whatever the ancient
o. the present customs or ideas of natives Of
this Kingdom on the subject Of adopting
children, fathers or mothers and may add 10.
regard to relations between the sexes, once
recognized By custom and not prohibited, bat
which are no longer legitimate, such customs and
ideas can not prevail against Statutes of wills
which prescribe what constitutes a will, and Of
descents, prescribing all the inherting relations
bat not mentioning adoption. An adopted father
Is as much an own father, in the native mind, as
an adopted child, bat neither Is an heir at lac.
1t s not enough to say iha. an adopted child
IS heir because he, his adopters or bis natural
parents think be is so, for they do not make the
law. There are only two kinds Of heirs those
made such, q. e., BY last WILL and those barn
such, Il E., heirs at law If adopted children
we're heirs at law, the Statutes would be strangely
and unfortunately defective, in falling to provide
for the heirs Of the adopted ehid-its own blood |
heirs, Or its adopted parents blood heirs. If the
heirs Of the adopted child succeed, the property |
Of the adopting family Is diverted from its blood,
aud if the heirs Of the adOpters succeed, then
the property Of the ebilds kindred il diverted, 1
and 10 either case the Statute Of descenis would 4
be set aside. By tina. Statute, Oh failure Of
kindred the personal property escheats to the
GoTernment, and the land reEsrts 70 the owner
Of tie Ahupuaa; II there be no issue, Ehieh the
Statute defines a. Ineal descendants" one half
Of the estate goes to the widow and one half to
his father and mother. The Statute il explicit,
that the property Of the intestate shaz deseend
10 and be divided among bis heirs as hereinafter
DrsscTi5sd-7 II he IeaEe no widow nor iasue,
the whole sSaR dssesnd 70 his father and mother"
II be shall lsaTe no Issue nor father nor mother,
bis eztats sb11 descend one half 70 his widow
aud the other half 70 bis brothers ard sisters."
To these statute claims no denial can be made
Hesed On the IEHs Of this Kingdom
This ia not case ID which any cgstom Is al
eyed az having the force Of laE. and II alleged,
{ eoGld have 10 force 10 the face Of explicit
its,1:s pFogizionz No laz makes an adopted
hid an heir and to cay that an agreement Of
adoption has the force Of testaGentary act, Is
10Th 70 presume. what Is not shown 70 Be
h truth that s1ch -zs the iutsutfou of sQeh ! ;