The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-12-06
Honolulu, Nov. 9th, 1882.
Supreme Court of the Hawaiian Islands
In Ranco.



KAMoKU ET AL VS.. KALAAUAHA.
Judd, CT, Mcouzy and dustin J.J.-Opinion
Of lie Court by dustin j.
This is an action of ejectment. It comes
here on motion for new trial by the defendant
on The ground that the verdict was against the
law and the evidence and upon exceptions to
rulings made by Justice Austin on the trial at
the July term.
The plaintiff claimed as daughter and sole
heir Of Uanalakehau the patentee Of the land
in question.
To prove This there was the evidence Of the
plaintiff and also of several other Witnesses
in the nature of pedigree form which we think
the jury were justified in finding as they did,
th1t the patentee and Keakeakelani were hus-
band and wife under the ancient custom, and
pribr to the law establishing Christian marri-
agt, and that while SO husband and wife they
mad daughtes the plaintiff This finds her
their legitimate child The woad wife is used
IN the bill Of excSptiops,> and has but ono
meaning.
When applied to relations existing before
the law above referred to, It means that the
parties to whom it refers consorted and lived
together as husband and wife do since that
law, and that they are to be considered in law
as such.
By request the Court charged the jury that
a showing that the plaintiff was daughter Of
the patentee was not enough unless the plain
tiff also showed that her parents lived together
as husband and wife. And the defendant now
claims that there was no proof of that fact
We think as we have said that the evidence
was ample to show that the parents were hus-
band and wife, and that while such the plain
tiff, their child, was born. If this be SO it
constitutes proof that they lived together as
husband and wife. They certainly did at the
time the plaintiff was born.
Upon this point the plaintiff swears in sub
stance that she lived with the patentee and
her mother as their daughter on the land in
dispute till she was ten years old, when her
mother died, and thereafter with her father
till his death in 1866. This strongly tends to
show living together as husband and wife.
The jury were right in finding it.
The evidence in the nature of pedigree was
proper.
See Adams on ejectment vide. p. 2s3. An
other point is made. The defendant excerpts,
that even though the plaintiff showed her
self to be the legitimate daughter of the pa
teniee, she did not show that he died niles
tate.
Upon this point we cite Brand VS.. Livermors
10 Johnson's Reports =. e5s In that case it
appeared that two of the plaintiffs lessons in
ejectment had said that the ancestor under
whom they claimed as heirs had made viii
which they did not produce, and no proof Of
which was made at the trial.
The Court say, "Though Henry Cuyler,
the ancestor, may have made a viii it does
not follow that such will contained q devise
" Of any part Of his real estate, and particu-
larlarly Of the premises in question, The
defendant was bound to show such devise
afirmatiEely, If he would bar the title to the
heirs. The Courts viii never allow the heir
to be disinherited by mere conjecture, See
also End GreenleaFs sv. sec. 800 ps. 1918 sec
33l p 3O7-Adams on ejecfment vide pages $50
and sis, The plaintiff was required only to
make positive and not negative proof, and slls
made enough.
The defendant further claims that, as the
patsntee LEFT widow 70 whom he was law
fully united in Christian wedlock, and under
whom the defendant claimed, therefore the
plaintiff. born before Christian marriage was
hare By law, can have no rights |
as legitimate child Of The patentee. What
we have before said shows that we are Of opin-
ion that this cannot bs SO.
The fact Of legitimacy or illegitimncy is fixed /
at birth and cannot be changed by any thing /
that occurs subsequently. 7zs exceptions QrF !
orrTulsd.
". r. Castle for plaintiff, a. S. HartusIi for |
defendant.
HOs0Irru, NOV. 7sh, 1851.