The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-08-28
Supreme Court-In EQUITY.
KEAUHULHIA Ky IT AL VS.. HIRAM UAHIKI
Opinion of Chief Justice Harris.

Opinion Of Chief Justice Harris.
[ do not see any evidence of fraud between
these parties, and the Plaintiffs, If they recover
at all, must recover on the ground that the
whole proceedings being a mistake are void
from the beginning. Ii appears from all
the testimony and from the bill that Meaai,
a woman, who was the wife of Puahiki. the
Defendant in this case died in 1868, seized of
the property in question, and that the Plaintiffs
In this case are brother and sister of Meaai.
1t is contended on the part of the Defendant
that the law Of descent, even previous TO 1872,
entities the husband to one-half of the estate,
and the decision Of the court in the matter of the
estate Of Napua Zupplien Kaluahine, deceased,
Is not conclusive in this case. See 3 Haw.,
p. 327.) Because 1t was an Obater diotun and the
text of the decision does not support the syllabus.
But on reading the case over L do not ind that
it is an O6iteT dictuDn. For the husband was
claiming on two grounds-frst, by virtue of the
Marriage Act second, by virtue Of the Statute
of Descent. Now, If the decision OF the Court
should be that his claim by reason of his mar
rage was good, he would be entitled TO all the
personality and none OF the reality. (See Civil
Code, Section 1861 which states that "provi-
ded that in case his wife shall first die, the
husband legally married as aforesaid. shall cease
to have control over the Immovable and fixed pro-
perty Of bis wife, and the same shall Immediate
ly descend to her heirs as IL she had died sole,
unless there happen to be Legitimate issue of the
marriage within the age OF the legal majority.
But If his claim should be under the law of dee-
cent, then he would be entitled TO One-half
the realty and One-half the personality. so
that it became necessary for the Court TO decide
whether the husband must take under the mar
riage act or under THAT Ut descent. For, say
they, " He cannot take under both provisions,
because they are incompatible and they further
decide that be must take under the marriage act
and not under the law Of descent ae 1t then
stood for, say they, - There is only one condi-
ton under which the husband can inherit the
property Of the wife, and that is, where she dies
intestate and leaves no kindred but her husband,
and in that case ne shall inherit all her estate
This decision, 10 view of the second and third
subdivisions of the I448th Section of the Civil
Code, and Of the l286th Section, war clearly
rigbt-was entirely in point in that case-and
was conclusive upon the rights of this Defendant
up to the time of the execution Of the partition
deed 10 December, 1879, which ii It lie the object Of
this proceeding to set aside and the question is
whether the deed to the Defendant by the Plain
tifs ought to stand.
Ii Is said first, that il ought to stand because
that il is a mere carrying out Of a previous
made in 1864 verbally or to state
the Defendants position IN his own words,
because . it appears that the property set-off to
Puahiki (by the deed) was the same as that set
of in 1864. as his share, and held by him until
the PARTITION
[ do not see the force Of that position, for IN
the first place the wife did not die until 1858,
and secondly, if they did make a verbal partition.
il appears TO have been done in this way. (See
Testimony of H.. Puahiki, page 49, My wife
first divided this land into two portions by word
of mouth, one-half to our parents and the other
half to myself" This amounted to nothing
more nor less than that they two 1.-THE husband
and wile) permitted the parents to occupy one
half the land, and apparently from good cause,
since Kakio who is the parent alluded to is the
same person who is mentioned in Kamakai's will,
devising this land IN the following words Ike
hoolilo aku nei an i on mau kuleana la Meaai a
Ike hoolilo aku nei an IA Kakio i hope no Meaai.'
Thus constituting Kakio a " hope =" for Meaai
idea he may have attached to a hope
whether factor, agent, trustee, attorney or other
wise.)
Thus it will be seen that from the date OF his
death. the Defendant had merely a per-
missive occupancy by her heirs, which were her
and sister, having no rights OF bis own,
though by the after events, it appears that they
thought be had; and perhaps he thought 90 him.
The law Of 1872, which enacted that under
,uch circumstances as those under contemplation
the husband would be heir to one-half Of the
xife's property, had no effect on his position,
the rights Of the Plaintiffs to the property
the hour when the Defendants wife
lied.
At the date Of making the deed in question,
he Plaintiffs right to the piece of land set-of to
was indisputable, since whatever
loubt may have existed on the Statute of Des-
bad been set at rest by an authoritative
Iecision Of this Court in the case of Napua Zup-
lien Kaluahine, above quoted. The Plaintiffs
in ignorance of a plain and settled principle of
aW were induced to give up their indisputable
that is to give something for nothing;
nd il is an unquestiOnable doctrine that where a
so acts, " A Court OF Equity will relieve
i'm from the effect Of his mistake" (See l
Equity Juris. % 12l, 1921 If the divi-
ion had occurred previous to the decision in the
state of Napua Zupplien Kaluahine, above
tied, the position Of the Defendant would have
cen better, for it might have been considered
nat there was a doubt bow the Statute of Des-
mt would have been construed. !