The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1872-01-27

nizes the relationship Of an adopted child as an
iuheriting relation, we must conclude that no such
incident attached to it before the first enactment
on the subject" On this point We quote from
the decision of the Chief Justice
This objection has great force. Bat 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, he was 50 regarded as a child in the
{ family, and entitled 10 all the rights of a child of the
blood, and heace the general term was used. Oar
statute Of inheritance declares that property shall be
/ divided equally between the intestate's children. We
regard an adopted child as included in this general
term. We mean a child who Is adopted a. ones own
: child, with the clear understanding thar he Is entitled
to h~eirship. The Court is fully aware that children
often lived under the charge Of those acting ia the
relation Of parents, 50 far as food aud clothing were
concerned, who were not entitled to inheritance. Aud
hence the great difficulty OF adjudicating in this class
Of cases, after the lapse Of so many years, and Courts
and Juries should require the most satisfactory evi-
dcnce that the adoption was made in reference to
hership as well Us to general care and supervision.
50 far as the Court have referred in their decisions TO
the general question Of adoption, il has been taken
as an admitted principle that children adopted with
the foregoing provisions had the right of inheritance
under the written Law Of descent now in force.
The following paragraphs contain the most
salient points Of this decision
The Court is Of opinion that there were children
by adoption who were regarded in all respects As ones
own children, and that in the enactment Of laws, the
same terms were applied TO them as to the children Of
the blood, that is, they were regarded as the intes-
tate's children.
was, prior to the written law, a custom and usage
which recognized an adoption, if clearly defined in
the contract, by which the child adopted might be an
heir 10 the property Of the adopter.
As adoption was recognized by the ancient customs
and has continued to be by the laws Of the Kingdom,
il Is evident that it was 4 relationship endeared TO
the people, and regarded by them of the highest i'm
pOrtance. Is 1t reasonable to suppose then, that il
. Unmarried N n riuItS-that IL was the rplatiouSbin If "a
day, and for a comparatively unimpOrtant purpose ?
To the Hawaiian, il was a sacred relation, and hay-
ing all the rights, duties and obligations of n child of
the blood ; and the opinion which the majority of
the Court entertain is, that by ancient custom and
usage an adopted child was an heir of his adopted
parents. when so stipulated, and that the same view
Of these rights of the adopted child was entertained
by the different Legislative bodies of the Kingdom,
although the spec ic term is not used in the law Of
descents.
But the evidence as to the right of the keiki h1nai
to inherit, is somewhat conflicting, and the Court are
uncertain what the intention OF the jury was In rem
dering the verdict. by the terms used, and therefore
they regard it rs an act of justice to the parties, that
a new trial should be granted. The verdict is not
clearly responsive to the issue. and it is the Judgment
of the Court that the verdict of the jury be set aside
and a new trial granted.
Mr.. Justice Hartwell, dissenting from the opin-
ion of the majority of the Court, says at the out
set:
The verdict that the appellee was a '%eiki
hama" or foster-child of the d%ecedent, gives no
basis for n judgment or decree, for this relation of
itself alone has never, as | understand, been re-
garded as sufficient to make such child an heir.
The Act of 1864, under which probate appeals are
triable by jury, restricts such trials to issues of fact
IN claims under a will or under the statute of de-
scents. An issue of the adoption of an heir by an
cient custom is not triable by jury therefore, unless
it be classed as a claim under a will,-and no such
claim is now preseated,-or under the statute of de-
scents. on the ground that this statute may be con-
Strnp6 II iucluHp 0lOnfal hairS with iSSna of the
body, as heirs at law. The construction, as it seems
to me, is legally impossible. For these reasons L
think the decree cannot stand.
Nor do | think that a new trial. in any form should
be granted, for inasmuch as this decedent died since
the present statutes of wills, descent and transfer of
property took effect, [ do not regard her act, in
adopting the appellee as an heir, us one which the
law can now sanction and effectuate.
Some difficulty occurred on Thursday in getting
a jury qualified to sit, and the panel was ex-
hausted before this was accomplished. Some had
sat before on the previous trial of the case, and
others had formed or expressed an opinion. The
question to be decided by the jury was stated by
counsel in the opening to be,-what kind of an
adoption was the one in dispute? Was it simply
to feed, clothe and educate, or was it an adoption
as an heir? This, it would appear, is a some
what delicate point for a jury to decide, and out
of the ordinary range of questions submitted to
this form of trial.
Grave doubts have been expressed of late years
by some of the best legal minds of Europe and
America as to the positive value of retaining the
system of trials by jury. 1t has been held, and
with much reason, that by the jury system justice
is often defeated of it's ends. No one who has
watched the Courts of this country will fail to
concede that such is often the case here.
The jury brought in a verdict at 10 O'Clock last
night, against the claimant. Notice of motion
for Il new trial was given.