The Hawaiian gazette., 1872-01-24
Supreme CourI-In Banco.
JANUARY TERM, lSI2.

[A child adopted as an heir BY ancient custom in
hrs TO the exclusion Of collateral kindred although
the adopters died since The present statutes OF Wills
and Descent took effect But this relation must bt
shown by clear and unambiguous evidence, and No
Judgment is sustainable merely verdict that the
claimant is a keiki Aanai OF foster-ehildl
/ ~ RE. ESTATE OF y4KU4P4. DECEASED.
CHIEF JUSTICE ALIEN
A petition for Letters Of Administration Of
the estate Of Nakuhpa was presented to the
Chief Justice sitting in PROBATE, by Heahi, who
claimed to be a cousin Of the deeedent Al the
hearing various claimants appeared, and among
them Kaaoaopa, who claimed the estate aud the
right to administer upon it, as an adopted
daughter Of Nakuapa, alleging that the adoption
was made before any law requiring adoptions to
be made in writing. The Chief Justice, sitting
in Probate, having heard the testimony offered,
decided that Kaaoaopa was not an adopted child
OF decedent. from which decision an appeal was
taken on that issue Of fact to jury, who gave a
verdict that Kaaoaopa was 4 ksiII hGHai of Ma
kuapa. A Judgment on this verdict is resisted
on the ground that person adopted by verbal
agreement prior to the enactment of written laws
requiring that the adoption should be in writing,
could not inherit by force Of this relationship
alone.
Before written laws are passed by the legiti-
mate authorities Of nation, the customs and
usages which have long prevailed, and have been
universally recognized, have the same force Of
law as those subsequently passed and incOrpo-
rated in a code The evidence however, must
be clear and complete in regard to the custom
and usage.
1t is unnecessary to give a detail Of evidence
in relation to the custom and usage which pre-
vailed in relation to ADOPTION prior to the written
law, for it is admitted that it was a very general
custom among the people Under the general
term Of adopted children, there were various
relations to the adopted. Some were mere foster
children. taken to nurse and to exercise a parental
care over, and for a temporary purpose Others
were adopted as ones own children to be cared
for. to live with the adopter as such and it is
necessary that the relation should be clearly de-
fined by competent evidence in-relation to the
precise terms of the original contract.
It is contended by the counsel for the con-
testant " that as no Statute can be found which
recognizes the relationship Of an adopted child as
an inheriting relation, We must conclude that no
such incident attached to it before the first
enactment on the subject" This objection has
great force. But We account for this omission Of
special reference to an adopted child in terms
to the fact that when one was adopted in that
relation, ho was 50 regarded as a child in the
family and entitled to all the rights of a child OF
the blood, and hence the general term was used.
Our statute OF inheritance declares that property
shall be divided equally between the iniestate's
children. We regard an adopted child as in
cllded in this general term. We mean a child
who is adopted as ones own child with the clear
understanding that he is entitled to heirship.
The Court is fully aware that children often
lived under the charge of those acting it the
relation Of parents, so far as food and clothing
were concerned, who were not entitled to inherit
ance. And hence the great difficulty of adjudi-
eating in this class Of cases after the lapse Of so
many years, and Courts and Juries should require
the most satisfactory evidence that the adoption
was made in reference to heirship as well as to
general care and supervision. So far as the Court
have referred in their DECISIONS to the general /
question of adoption, it has been taken as an ad-
mitted principle that children adopted with the I
foregoing provisions had the right of inheritance
under the written law Of descent now IN force
In June 1856, a claim was made to portion OF
the estate Of Puaa by Ikuwa, an adopted child /
of Kaiuibau, the wife Of Puaa. The evidence
in that case is as follows:
9" The adoption was in the presence Of Naihe, /
who was the tax collector of the district. am
a resident of Kohala. He lived with Kaimihau .
for some time, and then went to the Seminary at
IIilo for a number Of years. The father Of Ikuwa
was brother to Kaimihau. The tax officer did
not give Us any certificate; he merely put the
names in his book. The Court ordered that one
half the property Of Puaa's estate should be
given to Ikuwa."
Another case, in the matter Of Hakau-I Haw.
Rep.-was presented to the Court in the same
year, in which one Manoa claimed an interest in
the estate as an adopted child, and the Court
say that Manoa was not related, even in the
most remote degree to Hakau, bat was merely
in some way with her first husband,
Kahananui Sen. Nor do we think, although
Nanoa lived 10 the family OF Hakau for great
length of time, there is satisfactory evidence to
show that she had formally adopted him as her
child, or any evidence whatever that she intended
bin to share in her property, with her nephews
md nieces. Had ManOa been adopted by Hakau
Is her son, in due form Of law, he would have
been sole heir to her estate, upon her dying in
.estate.7 This opinion vSf drawn by Mr.. Justice
Robertson, and eoncurreA IN By Chief Justice
Lee.
In the case OF Abenela vs.. Kailikole, Haw
500 Mr.. Justice Robertson says that a. all agree
nents Of adoption are Of great Importance, as
Affecting the rights Of property and in the case
# the estate of Kamehameha ". the same
Justice says that " He was entitled, as the
dopted son of Kamehameha III, to inherit the
emaindeT Of his estate, not demised to any one
lse subject to DOVER
The opinions Of Chief Justice Lee and Mr..
Justice Robertson are worthy of very great con
liberation on all questions where the Customs
nd usages Of the Hawaiian people are concerned.