The Hawaiian gazette., 1878-02-20
WEDNESDAY,. FEB. 20. 1875.
supreme Court OF the ERawaisan
islands. january Term. lsss- :
EMMA KALELE0NALANI rs. J. n
SMITH, Z. o. HALL.aad $ B, DOLE,
Trustees Of az Esii,s If His las

Hsrris. Q. Ji ana MeGullE. j.

f1Arrls, y. y anu ACNfnlif. d -rff
Opinion OF the Court by NeCnlly. J. 4
(Jnstice Jedd hzviag drawn the codicil re-
ferred TO. aad testified in the case, did not sii)
The matter before the Court may be stated
thus: ihe plsinIitf herein Is the devisee under
The second item Of the codicil Of the VIII of His
late Majesty Lnnalo. ia these words:
Second-After The deeease Of my, father, |
devise The premises NJ Waikiki. Oahu, known
as my Marine Residence, to Queen Emma. her
heirs and assigns forever.r
Upon the death Of the father, the defendants
were constituted trustees, rs provided in the
Will. and took possession Of the whole Estate.
In pursuance Of the eodici they put the plaintiff
in occupation OF certain premises al WalkIki OF
about four acres in extent on which stand the
residence, detached cottage and the outbad-
iogs. These premises are u portion Of u tract
esiied by HawsizRs .'kaluakan.' Action Of
ejsctmeut was brought at the October Term 10
recover the remaining . acres, and verdict rem
dered for the plaintiff. The bill Of exceptions.
and the instructions given or refused on the de-
PENDANTS part will complete the statement Of the
case.
Bill Of exceptions
The plaintiff claimed certain land (as set forth
by metes and bounds 10 her declaratou) as part
OF Lnoslilos Marine Residence at waikiki, un,
der the devise to her Of that property.
]. The plaiutifs counsel offered evidence TO
show the testaiors understanding OF the term
Marine residence and OF his uss Of the land
claimed as part Of his Marine Residence" and
that the land claimed was necessary or conven-
lent to the use Of the premises by reason OF the
water source being on it, and kalo being raised
there. 10 the admission Of which evidence the
defendants counsel objected, aud they duly ex-
eepied TO lis admission by the Court.
il. The plaintiffs counsel offered evidence of
what was known aud used as the Marine Resi-
deacef 10 1853. and at vsrious other dates prior
10 1872, the date OF the testaior's will to the
admission Of which evidence defendants counsel
objected aud duly excepted TO its admission by
the Court.
III. The evidence Of the plaintiff showed
that the plaintiff Is now in possession of GER
tain parcel Of land, and the bull dings thereon
marked Us -Pahale" on the plan 6ed herein by
her counsel That said house lot was enclosed
on all sides in such manner as to keep out ami
mails or with the object Of Keeping out animals.
On this evidence the defendants counsel
moved the Court to rule that verdict should be
rendered for the defendant, and duly excepted
TO its refusal OF such motion.
". When all the evidence on both sides
was closed, the defendants counsel moved the
Court to instruct the jury that verdict for the
defendant should be rendered. aud duly excepted
to the refusal of such motion. Instructions
given for the defendants are hereto appended.
The exceptions are allowed.
Instructions asked by defendants, aud given,
except the fourth.
/. The hlaintltf is entitled under the VIII
only to the premises which. at the testator's
death. was known as his Marine Residence
II the land marked as "Pahalen meaning house
lot" the plaintiffs survey, is all that the VIII
called for. the plaintiff cannot recover, and the
defendant is entitled TO verdict.
ii. Ii Is immaterial whether the land claim
ed would 6e Of use or convenience to the owner
Of the - Marine Residence" or not, or that the
testator owned it, for be has not devised all his
lsnd at Waikiki, nor all of the land called Ka-
luakua.h bat merely his residence, and nothing
can be taken under this devise. except what
strictly and necessarily is TO be regarded as the
Marine Residence
Ill As the residence did not receive its
name until about 1872 the earlier bounds of the
testator's property, as used for his grass house,
are immaterlal to this case, aud evidence in re-
gard to it Is to be disregarded.
". Tue evidence is insufficient in law to
sustain verdict for the plaintiff (rhis in
struction refgsed)
V. If the jury have doubt as to the extent of
the devise, the defendants are entitled to YER
dict. or, in other words. the burden of proof is
on the plaintiff. which burden okproOf is TO be
held more strictly than IN ordinary cases.
vi. The question Of right of way to the mau-
IA land Is immaterial, ss the occupants of that
land will lonk out for themselves.
Pea. Curi7ns: The plaintiff offered evidence
to show what was " known as my Marine Resi-
deuee.' on the ground that there was latent
ambiguity in the words expressing the subject
devised. Taking Lord Bacou's definition Of
GRl5ig1titzs IdtsRs-.. that which seemeth certain
and without ambiguity for anything which ap-
peareth upou the deed or instrument, but there
is some collateral matter out Of the deed that
breedeth the ambiguity" it would seem that
there was such an ambiguity here from the fact
that the buildings were placed at one end of q
large tract Of land. and the plaintiff claimed
not set-off BY definite PARTITION aud not sepa-
rated 10 use from the portion delivered to the
plaintiff. As the plaintiff claimed that the whole
tract was " known" as the premises intended to
be devised, be must have been permitted TO show
it By evidence, if he could. Upon the question
Of treating this as latent ambiguity, We may
well say With Metcalf j., in American Bible So
ciety vs. Pratt. 9Th Allen, the cases on this
subject are numerous, they are also irreconclla
bic. as was SAID By Lord AbiDger and by Shaw
c. j." bot from consideration Of the different
phrases to which II has been permitted to apply
| parole testimony, We judge that the present sub
/ ject OF devise and the terms describing it war
rant and require it. Ii eauuot therefore be saiC
that testimony to that point was Irrelevant Bu
I after it was in it appeared that 3 considerable
4 part OF it did not prove anything for the plain
( til. namely. the testimony OF the Hawaiian Wit
/ nesses covering the time from 1860 to abOu
7 1872. for they knew nothing Of 8 Marine Resi-
I deuee.' and they. as well as all the other vit
nesses shoxei that nothing corresponding u
I such was in existence IN those years. Where
/ upon the Court Instructed the jury that tina
evidence had failed altogether, that il must b
I excluded from consideration, because it bat
/ proved nothing. Bat it is evident that If th'
/ plaintiff bad been able to show by these wit
/ 1esses that the whole Of the tract IN question
had been known in all those years By the devise
and By his retaIners and friends as bis i. Marin
Residence" at Waikiki, such would be the yer.
latent ambiguity or controversy in the inlerpre
tatiOn Of the codicil. The fact that it fell shOr
and proTed nothing was not a reason Why /
should not have been admitted. The Cour
could not beforehand know that il would fail
! and when il had 60 failed It instructed the jurI
to disregard the attempt
/ But We desire to place our decision on TIN
| point on = broader gro1nd thar this, that th
evidence IN question was properly admitted il
the first instance. and to hold the doctrine tba
il evidence has been wrongly admitted because i
vas Incompetent or irrelevant, and # the Judg
shall, upon its appearing to be such. instruc
the jury 70 dizregsld il, it is not grSand Of ex
eeption- The jury is sworn % render verdic