The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-12-20
Disssnt.nq opiinion Of Mr. Justice Judd.

Dissenting opinion of Mr.. Justice Judd.
This is an action of Ejeetment for q piece OF
land in KOoIaupoko, Oahu. The jury rendered a
verdict for the Plaintiff, to which the Defendant
excepted and moved for judgment non ObsLGnte
UeredicfO. on the ground that by the evidence of
the Plaintiff he Is not within the degree Of rela-
tionship, which, by the Statutes of this country,
would entitle him to inherit.
The land was patented to Hinaaimalama, who
died leaving an infant son Kupau, and a widow
KaleIe the son died soon after, and the estate
vested in his mother Kalele. Makea the Plaintiff
claims that his grandfather Kumaiahea was
brother to Keawelaikini the grandmother of Ka-
lele, making him Kalele's second cousin. The
question reserved for the consideration of the
Court is, whether such a relationship is capable
of inheriting by the Statute of Descent in this
country.
By the Court 1t is prescribed by the Civil
Code (Of 1857 that " The property, real and per-
sOnal, of a person who shall die i~ntestate, within
this Kingdom, shall descend to and be divided
among his heirs, as hereinafter prescribed, and
" " if he shall leave no issue, nor father or
mother, and no brother or sister, his estate shall
descend one half to his widow, if any, and one
half TO the brothers and sisters Of his father and
mother and TO their children and heirs, by right
of representation and if he leave no widow then
such collateral heirs shall inherit the whole es-
tate provided, always, that If the estate come
NilAOuan CAktfCA BliUllS bAO OAONhNAo aAL 81 ~
that parent shall be preferred to the others if
the i~ntestate shall have been married and leave no
kindred but u widow, then she shall inherit all
his estate and if the intestate be a woman, and
leave no kindred but her husband, then he shall
inherit all her estate"
The Defendant contends that the Statute ter
inmates the inheritance of collaterals with the
brothers and sisters of the parents and their di-
rect descendants, and prohibits the inheritance
from going any further back, and thus cuts of
tire grand parents and great uncles and great
aunts Of an intestate and their descendants, from
inheritIng from him.
In the discussion Of this question, it becomes
necessary to review the enactments Of the Legis-
Iature ON this subject. I find in the q Act to or
ganize the Executive Departments" Laws of
1916, p. 1879. the following The rules of des-
cent and natural Inheritance shall be those de-
same Act / also find that lands which are patent
ed shall nSyer revert or escheat to the Govern
ment. . . Except . . . - for the utter default
OF heirs of the testate or intestate owners .
as IN the FIFTH part Of this Act prescribed"
Ii Is evident from the above that a Statute of
descent was contemplated by the Legislature to
form a part OF the organic acts of 1916. Is was
not enacted until 1850. Ii is equally evident to
me that the Legislature when it used the fOrcible
and clear language that there should be no es-
cheat except for the " utter default of heirs, re-
cOgnized that those Of the blood of the intestate
were . heirs and capable of inheriting land,
though no Statute of Descent had then been en-
acted. In the case of l.. KeelikOlani V. James
Robinson, 3 Haw'n. 3d., the Court held that at
the time Of the death Of KalaimOku, (lS27)
Z. there was a common law Of inheritance, liable
to be modified or defeated, but perfectly good
until such an event" Ii is quite true that in
the above quoted case, the inheritance was of a
son to his father. (LeleiOhoku to KalaimOku)
which il universally conceded as being according
to the - dictates of natural Affection but from
4. 10000 ahnu. nod hu tho fN1urf xUn
rightly infer, that if the case had arisen the Court
would not have hesitated to investigate any claim
Of heirship by blood, and recognize 1t though no
Statute OF Descent had then been passed. The
Statute Of Descent Of 1850 is the sam as the pre-
sent one, except that the addition Of the words
- and heirs is made in the Act Of 1859, after
the words and :. 10 the brothers and sisters Of bis
father and mother, and TO their children, :" which
was an evident omission in the Act of 1850.
IL il noticeable that Of the Statutes OF Descent
of the SO States Of the American Union, but ten
expressly carry the inheritance further back than
the brothers and sisters of the father and mother
and their children and heirs bnt in all these
Statutes there are words like the following If
there be neither Of these, then to the next Of kin
in equal degree" See Statutes Of Vermont and
California.
s" Il he leaves no issue and no father, mother,
brother nor sister, then to the next OF kin in
equal degree See Statute Of Massachusetts.
In some States where grand parents and their
descendants are prescribed as InherItIng, there IS
added " In cases not provided for by the Sta
tute, the inheritance descends according to the
course Of the common law" See Statute Of Ark
ansas.
Our Statute contains no enactment, that in
cases not specifically provided for by the Statute,
the inheritance shall descend according to the
course Of the common law, nor is there a prOvi-
sion that in default Of the relationships by the
Statute declared to be capable of inheriting, the
Estate shall 20 to the q next of kin - but it
must also be observed that there are no express
words declaring that the next of kin do NOT H.
herit, in default Of Statutory heirs. | am strong
ly impressed with the idea that the Legislature
did intend that the next Of kin shOuld inherit in
such case. They declare in the section we are
considering that if the intestate 9 leave no kin
dred but a widow, then she shall inherit all his
estate Though speaking Of a widow as . kim
dred - to her husband, is not an ordinary use Of
language. yet there is authority for it. However
this may be, the idea is here distinctly conveyed.
that, the previously mentioned relationships not
existing, in default of all kindred, the widow in
herits all, and in like case, If the intestate be a
woman then her husband.
50 in Section l45l, the Act reads that " if the
~intestate leave no kindred, his estate shall es-
cheat 10 the Hawaiian Government" This Is
the same as If 10 said, " There shall be no escheat
it the intestate leave any kindred"