The Hawaiian gazette., 1876-04-12
named Young chiers Or their euardians without


named young chiefs or their guardians, withou
objection by the Others or their survivors.
It may be objected to. however, that this is
proceeding merely to admit will to probate, no
to determine the right of property under it, bu
consider the restrictions and terms of will a
fair matter of comment upon the question Of the
proof Of lost will, for If they are absurd in them
selves, it is fair inference that they we're not il
the will. For instance further, the right assumed
by the testator, as claimed 10 the will propounded
TO devise as her own, the property cOnfessedll
another's, as the property Of KakiOewa to Lot
is certainly absurd when it is claimed to have AM
testamentary effect.
Reference. however, to Hawaiian history vii
show us that such g kauohas or directions mad,
By High chief 10 the expectation of death wer,
highly regarded and as in the nature Of. advice
/ which we're given effect according az the King
after discussion with the chiefs, considered the
7 instructions 70 be reasonable and such - kauo
ha was equally regarded whether purely oral OF
reduced &c writing.
This leads me to point made by the counsel
/ for the contestant, that is, that il il be admitted
/ that the contents Of the will are shown this will
has been already proved by a court of competent
jurisdiction, as it was presented to the Legisla
tive Council in lS45, and as testified To by KAN
akau its provisions were carried out which
corresponds to what Is now known US admitting
a will to probate.
The law on the subject was the act of oath OF
April, 1871, +" Respecting parental duties. F."
When he Qhe paren) dies, the heir shall ex-
hibit the will TO the King, and If the Supreme
Judges perceive there was real fault in tue will
they shall correct il" &c.
The Supreme Judges were by the constitution
of October Stl, 1870 the King, the Premier, and
r - D. l.
| find that in ls45, ~ Kekuanaoa then Govern
mitted wills to probate. Vide Polynesian,
1915 proof of will of Thomas Pratt)
1t is my opinion that this kauoha Of Kekau-
luobi was not regarded as having any effect as
testament, except 20 far as it left her own prop
erty to Lunaiu and it was unnecessary for this
purpose, for she had but one son and heir, Luna
lilo, aud it could have no effect, other than as
good advice. in passing the lands Of Kinau to
Victoria. or those Of Hoapllikane to Lot. &c.
1t was not strictly admitted to probate" in
the Legislative Council of chiefs as contended for,
but it was discussed there, and carried into eff
feet so fur as was deemed advisable, that is, the
sentiment prevailed that the young chiefs men
toned should inherit the lands from their respect
i've parents aud foster parents as Indicated.
In one sense, however, 1t was admitted to pro-
bate, for the only Judicial action necessary to be
taken upon it was taken. aud | fail to find any,
thing 10 the whole transaction that bears ont the
idea that this kauoha had the entailiRg clauses
in it. rs propounded in the petition, but if it did
contain them, the King aud council set them
aside, for these we're never carried out.
That the Legislative Council did settle or take
action upon the property of high chiefs is clear,
Tor the Elee Hawai-" newspaper Of June Bird, |
I845 contains notice of the settlement 10y the |
Legislature of the property of Gov. John Adams, |
Huaklnil by which they determined that bis pri-
7ate property should 90 10 his heir LeIeiohoku,
Z accordance with his kauoha twin and that his
ash $4,000 should go 10 Kekauluoh, Kameba-
neha Ill, and the Young chiefs, Lihohho, Lot,
Noses and Victoria. Also notice of the settle
nent of the property of Haalilio by the Legsla-
ure. that itshould 60 to the King as his heir,
ndthat the King should give HaaliliOd moth
r $40 per month during her life.
refer to these newspaper accounts, in default
f the records themselves which Counsel after
earch we're unable 10 fud.
The Polynesian of June 2lst 1915, in an obitu-
ry notice OF the deceased Premier, saws that she
ad large amount OF property IN her hands, the
lost OF which she held as guardian Tor her nece,
'ictora Kamehamalu. Her own estate, how
yer was considerable, the whole of which she
equeathed to her SON"
Bot the Land Commission was authorized by
w to Investigate. confirm or reject all claims
, land arising previously to the 10Th day of De-
smber, 1915" and as the will in this case vested
lie property at the date of the death.Of the tes-
Itor, (tbe 9TH of June. lS45) the action Of this
ommission in awarding the lands as mentioned
Dove without the entail TO the survivors is con-
usive against the right to prove will noU
hich would divert the property differently than
galded.
Their action was a judgment of Court of
'mpetent authority, upon a matter within its
risdlction, it being b" claim for land arising
eyiously to December 10th, 1915" Kanaiua
. Long, 1872 Kahoomana vs.. Minister OF In.
rior, 1875. '
But the case of the will Of Kanu, 1858, is re- =
red to by The counsel for the petitioner. In >
is case Justice Robertson admitted verbal
II to probate, made in lS43, and although the i
I'd the testator had, had beer awarded TO KIM
lka and not to the devisee. cannot believe =
at the attention of the learned justice was :,
He'd TO this point, or he would not have thus
lctically set aside an award Of the Land Com
ssson of which Board he was a member =
For the foregoing reasons, my judgment is that :,
, will Of Kekauuohi, as propounded in the Pc II
ion, be refused probate. y
A. francis JUDI, q
Justice Supreme Court. =
w. G. Jones for petitioner, L. Preston for con :,
tant. -
Honolulu. March 31st 1916. y