The Hawaiian gazette., 1872-01-24

final adjudication Of property, which, in order to
its validity should be good IS against all claimants.
The decree was made at Chambers while tho
cause itself was pending at Hisi prias. The motion
in arrest Of judgment still remaining undispossd
| Of in that court. The verdict that the appellee
was ksiki ignm or fosierchild Of the dece.
dent gives no basis for judgment or decree. for
this relation Of itself alone has never, as under
stand, been regarded as Sufficient to make such
child an heir.
The Act Of 1864, under which probate appeals
are trable by jury restricts such trials to issues
OF fact ia claims under viii or under the statute
Of descents. An issue Of the adoption Of an
heir by ancient custom IS not triable BY Jury
therefore, unless it be classed as a claim under
willard no such claim is now pressnted,--og
under the statute Of descen.s. on the ground
that this statute may be construed to include
adopted heirs with issue Of the body, as heirs at
law. The construction. as it seems to me. is
legally impossible. For these reasons think
the decree cannot stand.
Nor do think that 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, l do not
regard her act, in adopting the appellee as an heir,
as one which the law can now sanction and ef-
fectuate
TX this view l bave the misfortune to dissent
from the majority Of the Court, and therefore
present it with extreme Difference.
The adoption Of an heir is the appointment Of
successor. Viewed as contract, it is al agree
ment whereby the adopters agree with the parents
to take the child to treat as their own in oil res
poets including nurture and education, and with
the further understanding that if they do not
Otherwise dispose Of their property by viii, the
child at their death shall inherit it. II is well
known fact that agreements Of this kind we're
once common among the natives Of this kingdom,
and were carried into effect unless the chiefs saw
reason to order some other disposition Of the
property. But they change no natural law The
adopted heir remained akin TO his natural parents
and not to his adaptive parents. That they can
now have the effect Of modifying the statute o.
descent by making any Others the heirs at law
than are therein specified is not a view which s
presented for consideration. For this would he
nothing less than setting aside the statute at the
option Of private parties If private contracts
could render imperative the statutes Of wills aud
descent, legislation on those subjects might well
cease.
But it is not admitted that the adoption Of an
heir is testameutary act, and therefore in contra
vention Of the statute Of wills respectfully
submit that in so far as such adoption is now
held by the Court to have the effect Of putting
the adopted heir in the place Of the successor to
the adopter's estate it is in fts nature and effect
a testamentary act coming under the require
ments OF law concerning testamentary acts, and
thereby invalid. il seems to me that the case
might be rested on this view alone, since the law
the requisites Of last viii may at any
time be changed, and the law as it stands at the
testator's death must govern.
The argument in favor Of the present legal
ty OF an adoption Of an heir is based on a con-
strueton applied to the statute Of descent by
constituting the word child to mean an heir
idopted according to ancient usage This view
5 consistent in disavowing the idea that mere
agreements can render statutes iaoperative. It
s also consistent with the fact that an adaptive
agreement permitted the adaptive heir to be dis
Inherited Just as viii is revocable By a testator.
This fact leads to the inference that no vested
lights were acquired by the adoption, for other
wise they could not be annulled either by the
dopter or BY act Of the legislature II this infer
,nce be correct, change in the law Of descent
works no wrong, for no vested right s thereby
destroyed. This is the view elsewhere taken BY
ourts Of law, concerning the rights Of persons
laiming under a viii or as heirs at law. viz hat
hose rights are fired and rested only al he ds1h
4 he tesfaf0r or iHtestais, and are defned bV ne
1r as h Ael stands The law to-day may be
hanged here so as to give the eldest son a dou-
lie portion, and no one could be heard to com
lain that bis vested rights we're thereby impaired.
It is argued that the statute Of descent
oes not change the previously existing custom
~ law, or to attempt to state the position more
ceurately. that it was not intended that the
Tord child there used should exclude heirs I
dopted by ancient usage.
Il does not seem to me that this question Of I
obstruction Of the statute is open FOR considera-
ion for construction Of clear. plain. uuambieuous
lnguage in a statute is only admissible thiak, /
'hen other statutes conflict, and il is sought 70 |
i've effect 10 both, or when the results Of read
lg the words in their plain and natural meaning 1
-ould be so strange and oppressive that the levis-
lture may fairly be presumed not to have meant
hat they appear to have said.
Now it is only on the ground that the legisIa-
nre, in using the words they have used, ehHd,"
kindred, issue" lineal descendants &c,
ID not thereby intend 10 repeal the ancient Gus
1mary law concerning adopted heirs, and that
be statute aud the customary law are TO be con-
.rued in such manner as 10 give effect to both.
bat this question Of construction is open. But
le Civil Code enaets the principle Of law con
srning the repeal Of statutes, that The repeal Of
law is implied when the new law contains pro
sions contrary 10 or irreconcilabie With those Of
ie former law,"-sec 81. 1 submit that the
lcient Hawaiian modes Of transmitting property
+ devise, By will Of the chief or BY the adoption
heirs, are inconsistent with the present Ha-
allan statute Of descents that the language Of
lis statute is clear, leaving no room for infer