The Hawaiian gazette., 1878-05-15
WEDNESDAY. MAY Is. 1878.
Supreme Court of Ihe Hawaiian Is.
lands. April Term. ISIS.
ANNA JACOBS Us. THOMAS cUMMINs
Before Harris, c. j.. and Judd and McCully, il.


In this action the plaintiff claims dover in
q certain piece OF land sold by her late husband,
Samuel Jacobs in his lifeti me to the Defendant.
and the first point made by the defendant is,
that at the trial. the presiding Judge was asked
to instruct the jury.
First, That this being possessory action the
Jury must be satisfied that, at the time OF the
commenceme Of this action, the defendant was
in possession of the land in dispute.
Secondly. That the plsintif not having elected
to accept her dover instead of the provision made
for her by will, she cannot maintain this action.
These instructions were refused by the presiding
Justice, aud such refusal duly excepted to.
The presiding Justice left this question to the
jury. Is the plaintiff entitled to dover?
BY THE COURT: But this is an action to deter
mine the right OF dover and by no possibility
could the plaintiff 10 this action recover possess
ion ofany ofthe land in question, since by showing
herself entitled to dover, she, by no me ans, gets
judgment for any particular piece Of the land, but
only establishes her right to have her one-third
set off in accordance with the statute ; she there
fore has proceeded against the person who has
title to the land, aud it could make no difference
to her who was actually occupying the land at
the moment OF the commencement of the action.
The Judge, therefore, very properly declined to
instruct the jury that II was p0ssessory action,
or that the plaintiff should be shown to be in
possession of the land, if be was shown to have
the title of the land Upon the second point,
namely, that the plaintiff did not elect to accept
her dover, instead Of the provision made for her
by her husbands will. The statute itself does
| not provide that her failure to make an election
shall bar her of her dover but merely says that
she must elect to abide by the provisions OF the
will no will o nd Of
| lands; the actual words of the statute are as
follows:
Civil Code, Section 1872. If any provision
| be made for widow in the will of her husband,
she shall within six months after probate of the
will, make her election or be endowed of his
! lands - the widow mnst have done something
which showed that she had accepted the provis-
| ions of the will. II may have been in open
court, it may have been by written remuneration
OF her dover; or it may have been by receiving
and dealing with the property devised to her by
| her husband. But this woman did nothing to
signify that she elected to take her husband de-
wise in lieu of her dover. She receiTed nothing
she had nothing to receive, so that even under
! the statute, the point raised for the defendant
would not be available But again. even if she
had elected to take the provisions of the will, it
would not bar her right of dover in lands which
| had been aliened during her coverture. (Scrbner
on dover, page Ala and note.) Again the land
in question originally belonged to Paeole, and
descended to his daughter Keanu, who was the
wife of Samuel Jacobs and the mother OF his
son. The son survived the mother and inherited
from the mother. At the decease of the son,
the father inherited the property. Now the
point made ls. that Keanu, is shown to have been
born before her parents were married ; but there
| was evidence which tended to show that her pa
rents were living together before the year 1880
at which date Kaahumanu married the whole
nation at once, as it were. by decreeing that
there should be but one wife for one husband
and that those who had been living together
before and continued to live together after that
decree, should be taken to be married. The fact
| that the parents were shown subsequently to
have gone through religious ceremony of mar
riage, would tend very strongly to show that
they lived together in accordance with the de-
cree and that their subsequent marriage by the
clergyman was unnecessary and probably had in
consequence of their relations to the church.
But at all events the defendant is estopped from
showing that Jacobs the husband of this woman
was not seized because he derives his title from
jacobs and makes no preence of deriving it
from any other source. (See Collins vs Tory
7th johnson, Bovine vs. Potter, II Wend l64
Bancroft VS. White, l Gaines 1885, Hitchcock va
Harrington. 6 John 290, Thorndike VS. Spear
81 Me. 9l.) In this last case the widow proved
a deed of the estate to her husband and one with
warranty from him and that was held sufficient
to establish the husbands seisin. In Bolster VS.
Cushman, "a Me 428. it was held sufficient to
show that the husband was in possession Of the
premises and made deed Of warranty for the
same, and that the tenant claimed under him
In Mard va Fuller. Is Pick 1875. it was held tina,
q deed Of land duly acknowledged and recorded
raises presumption that the grantor had suffi
Gent seisin to enable him 10 convey. See likewise
Embree widow vs. Ellis, End johnson 49, In the
case OF Moore ys Esty. n. Fl. 479 it was hello
that tenant might show that the husband was
never 80 seized as to entItle the widow to dover
But that was a case where the father had con
veyed to the son, and the son had rs-conveyeC
to the father with provision that the fathe
shall not re-enter and take possession if the sor
should continue to fulfill the conditions OF bono
Of maintenance which he did not do, and the
father re-entered and the court makes use o
this expression. II is possible that there may
be cases in which o tenant in writ OF dover
who claims under the husband cannot be per
mitted to set up the title of stranger to dis
prove the sesin of the husband but there s NJ
pretenes that there is anything in the circum
stances OF this case, which can preclude the ten
ant from showing that the husband was never sc
seized as TO entitle this 6smandant to dover.
, This case Is best summarized in Scribner or
Dover, End vol. page 23l. "'The decided weigh
i OF authorities so far as they relate TO the bin o
exceptions, seems to be. that where one enter
into the possession Of land under and by virtue
of conveyance in fee. with covenants Of war.
ranty from another, and retains that possession
relying upon the grant or the possession unde
it, in aid Of his title or possession, he cannot
deny the title thus acquired against the granto
and those claiming under him; and it is not ma
teria whether this preclusion is founded upon
legal estoppel or the moral policy Of the Law
! alluded to by Oh. ]. Marshal in Wheaton 535
; 1t is equally effective in either case. and the
latter principle would seem to apply to convey
ance without as we'll as with warranty. l20 OhiC
st 23l'' 10 our present case, Jacobs the hus
band OF the plaintiff was in possession, and con
veyed to this defendant, who claims by no othe
right. The wife did not release her dover ant
the defendant cannot be permitted to show tina
Jacobs was not seized.
Exceptions overrued-Judgment on the yer
dict r. G. MacDowell for Plaintiff; Z. Preston
and G. Brown for Defendant.
: Honolulu. April % 1873.
Notice.
"0DGH GHAFTNH