The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-12-20
THE PACIFIC
GOmmrrtialA0btr
SATURDAY. DECEMBER %.
supreme Court, Hawaiian Islands, October
Term, 1879.
MAKEA (k) vs. NALUA CD. HARRIS, c. J., AND
MCCULLY, j..
%s4TURDAY. DECE1
Opinion Of he Court By Harris. c, }.

cepted and moved for judgment non O5sfanfe rer-
sdIctO, on the ground that by the evidence Of the
plaintiff he j. not within the degree ofrelation-
ship. which by the Statutes Of this country,
would entitle him TO inherit.
The land was patented TO H~inaaimalama, who
died leaving an infant son Kupau and a widow
Kalele the son died soon after, and the estate
vested in his mother KaleIe. NIakea the plan
tiff claims that his grandfather Kumaiahea was
brother to Keawelaikini, the grandmother Of
kalele, making him Kalele's second cousin. The
question reserved for the consideration Of The
court u whether such n relationship - capable Of
inheriting by the statute Of descent 10 this country.
The defendant contends that the statute ter
inmates the inheritance Of cOllaterals with their
brothers and sisters Of the parents and their d-
rect descendants, and prohibits the Inheritance
from going any further back, and thus cuts of
the grand uncles and grand aunts and their de-
scendants.
Per CHriam-On account Of tbs comparatively
recent period at which regular government and
right Of property IN land have been established
in this country, there - no necessity Of inquIring
into any ancient laws or customs touching the
descent Of property. Previous 10 the year 1876,
it cannot be said that the common people had any
rights Of property m land at all, since they were
liable at an times 20 be dIspOssezsed Of their hold
ings at the arbitrary will Of their own chiefs;
AHd even the superior classes themselves, although
they were accustomed when in expectation Of
death, 70 designate the person whom they de-
siFed to be heir TO their property, yet this will
AhAu0haJs luOuEu generally respectful WIS
liable at all times to be defeated or modified by
the will Of the superior chief It was not until
the year 1889, that any rights Of property were
established IN the common people. In that year
protection was declared, both for person and pro-
perty IN the following words - Protection is
hereby secured to the persons Of all the people,
together with their lands, their building lOts and
all their property" See Declaration of Rights,
page 10, Old Laws. Although this simple de-
cree was a step towards establishing the rights
r - II = - - H. =. -
recognition Of the right of Inheritance. 1t was
simply intended TO confirm tho living people IN
their present possession, and did not alter the
rights Of the chief TO re-distribute the land to
whOmsoever he might see fit, on decease Of the
tenant. Thus nc will be seen, there are no an
cient rights and customs to inquire into, and all
rights Of property and inheritance began at the
time OF the initiation Of settled government IN
1876. In that year, a code Of laws was publish
ed, and the Land Commission was established
and went into operation. All rights of inheri-
lance therefore were created by the statute. In
the statute laws Of 1916, at page I0l, Section 7th
il is enacted " Lands so patented Chat is pur-
chased from the government) shall never revert to
the King Of these Islands nor escheat to this
government Tor any other cause than attaInder of
high treason, as defined by the Criminal Code, or
for the nOn-payment Of taxes as prescribed in the
third part OF this act, OF for the utter default Of
heirs of the testate or intestate owners, being
Hawaiian subjects, as in fifth part Of this act pre-
1~AA1~N @12 - - @@T - SS4RN I
section B, it is enacted " The rules of descent
and natural inheritance shall be those dciued by
the Civil Code" But in the fifth part Of the
act, there was no provision for Inheritance, and
the fair inference 10, that in as much as the land
commission was then sitting, and was passing
directly upon each individual claim, il was not
deemed e~xpedient to make a provision for 90 i'm
Portant a matter, until there should be farther
time to think Of il, and to reconcile the chiefs to
n measure which would deprive them OF ImpOr-
tant rights which they had been accustomed 10
exercise. Accordingly we f0d that in 1850, the
first Enactment touching inheritance was passed.
The circumstance OF the country did not render
such an act impeTatiyely necessary before that
time because as it has been said before, the
land commission, during the three years preceding
had been occupied in collecting testimony and
not long previously had begun TO adjudicate
upon tie rights Of possession Ut individuals.
This first enactment reads rs follows, 80 far as II
is applicable TO this ease:
90 Whenever any person shall die interstate with
ia this Kingdom, his property both real and per-
sOuaI, shall descend 10 and be divided among his
heirs as hereinafter prescribed - and the second
section, alter setting forth the manner of descent
to lineaI descendants, proceeds to enact I'll
the intestate shall leave no issue, his estate shall
descend one half to his widow, and the other half
70 his father and mother a. tenants in common
IL he leave no widow, nor issue. the whole shall
descend 10 his father and mother, or to either Of
them il only one be alive"
Z" IL he shall leave no issue or father nor moth
er. his estate shall descend one half to his widow,
and the other half 10 his brothers and sisters, and
to the children of any deceased brother or sister
by right Of representation if he shall leave no
issue nor father nor mother and no brother or
sister. his estate shall descend one half to his
widow, IL any, and one half TO the brothers and
sisters OF his father and mother and to their
children by right OF representation and it he
leave no widow, then such collateral heirs shall
inherit the whole estate provided always that If
the estate come through either parent, the broth
es and sisters Of that parent shall be preferred
to the others" % III the inte=tate shall have
been married and leave no kindred but a widow,
chen she shall inherit all has estate and If the
intestnte be a woman and leave no kindred but
her hasband, then he shall inherit ali her estate
The Law a. subsequently reenacted in the Civil
Code in 1889. differs from this IN no material de-
gee Tins law prescribes the line of descent.
.e fret section states distinctly, that the pro-
psrty is TO be divided among his heirs as herein
after prescribed. which y the same as TO say,
chat in the new order of things. there having
been no heirship before those persons enumera-
ted IN that statute shOuldbe heirs and none other.
When il says in the last paragraph, .. IL the in
testate shall leave no kindred but n widow. she
shall inherit all his estate il does not mean
that she j. to contend against every person claim
ing kinship however remote, but the persons
meant by : kindred in that section are those
enumerated above and none other.
III the circumstances Of the country at the time
of the enactment Of this statute be taken into
consideration. il will be seen that there was n
difficulty Of tracing remote collateral relations.
Only ten Of the American states by their statutes.
expressly carry the Inheritance farther back than
ours. In all these statutes, there are words sim
liar to these. % II there be neither Of these IRE
IatiOns) then 20 the next Of kin IN equal degree -
- 10 cases not provided for by the statute, the in
heritance descends according 70 the course Of the
Common Law - and when it il considered. that
the cOmpilers Of the Civil Code had all these
statutes before them. it il impossible TO conceive
that they omitted these provisions Internationally.
Again, the 1853 section Of the Civil Code en-
acts, that, If any ~illegitimate person shall die
intestate without leaving lawful issue or n widow.
his estate shall descend to his mother, but If be
leaves a widow, she shall inherit one half and his
mother the other half, but If his mother be not