The Hawaiian gazette., 1883-02-14

The plaintlh seeks by tins acuon 10 recover
possession of the land on the northeast corner
of Nuuanu and King streets, Honolulu, which
he claims by right of Inheritance as surviving
heir of Mainae (w) to whom the same was
granted BY Royal Patent No. 1874.
The defendants hold by lease from the
heirs of James Austin, who obtained posses
sion of the premises by virtue OF an instrument
hereafter to be considered, from the said Mai
nae, patentee, to himself. dated the 2ith JAN
uary, 1854.
The plaintiff claims as the''nephew of Mai
nae, and AYERS that he is the son Of Ksiawa (k)
and Kahanu tw), Kaiawa being the brother Of
Mainae.
1t is proved to my satisfaction that Mainae
had husband, Kekoko, who died many years
ago, leaving no issue Mainae married again,
one Luau, and died in 1871, leaving no issue,
their children dying in the lifetime of the par
ents. Luau thereafter married kahiki and
| died since this action was brought.
Kaiawa married Kahanu about the year
1885, as some witnesses say, others say later.
Kahanu died in 1868 and Kaiawa in 1875. All
these parties are native Hawaiians Of unmixed
| blood. The plaintiff was born at kaaawa, 10
olsupoko, Oahu, in the year 1883, OF the wo-
man Kahanu, who is also known as Waakau-
honus. Her husband Kaiawa, is proved not
/ only to have'been married to her, but to have
| consorted with her as her husband for many
| years previous to and subsequent to the birth
| OF the plaintiff. 1t is also proven that this
| couple were servants of an Englishman, Chas.
Gordon Hopkins, SEN. living in the same house
with him in Honolulu, and that the plaintiff
| received his name from him, was supported
and considered by him as his son, which ID
strongly supported by the plaintiffs personal
| appearance as to complexion and physiog-
nomy.
| The counsel for defendants urges that the
Court on these facts is compelled to find that
the plaintiff is Legitimate and not entitled t.
| inherit from Mainae, his alleged father Kai-
was sister, relying upon the following:
"The presumption of legitimacy may be
| rebutted by circumstances inducing q contrary
presumption" Sew. n. p 1855.
"Where the husband in the course of nature
cannot have been the father of the wife's child
the child is by law bastard, whether tn,
husband be within reach of access or not" 1b
All the remarks in Selwyn show that thu
evidence may show that the husband could no
by the laws of nature have been the father.
"a child born during lawful matripony il
presumed legitimate. This may be disproveC
by circumstances, as showing the husband Il
be under the age Of puberty, or laboring undel
some other natural disability, or his continued
absence or other circumstances repellinl
strongly the presumption of access" c. J
Hills notes 4O5. See Phil. Ev. l5s.
GAS general rule, the presumption (of leg
itimacy) may be rebutted by evidence" lyle
on ejectment p. 1913, citing Morris VS.. Daviei
s CT. and Fin. and Reg. vs.. Mansfield Al c. L
els.
The doctrine however is clearly settled tina
although the birth of child during wedlocl
raises presumption that such child is legit
innate, yet this presumption may be rebutte,
both by direct and presumptiye evidence; an'
in arriving at conclusion on the subject, tn
Jury may not only take into their consideration
proofs tending to show the physical impossi
bility Of the child born in wedlock being leg
itimate, but they may decide the question O
paternity by attending TO the relative situa
tons of the parties, their habits of life, tn
evidence of conduct and of declarations con
nected with conduct and 10 any induction whicl
reason suggests for determining upon the prob
abilities Of thecase "Ib. Sol, citing Tern
$50, Str. 1924, Co. Lit. 1913 b"
alt is an irresistible inference from all lib
facts that the plaintiff is the son Of Hopkin
sen. AS matter of fact half white child @
native parents is a natural impossibility. Tn
law allows such finding of facts to be mad
on reasonable evidence. and if such fact
proved, it rebuts the presumption Of legiti
macy"
The leading case on this subject is Morri
VS.. Davis, Clark J FINELY l63, 800, Qs36'
Lord Cottenham was Chancellor and the emf
nent jurists Lords Lyndhurst and Broughau
sat in the case.
1t became necessary for their Lordships t
review the Banbury Peerage case. In thi
last named case, certain questions were sent
the Judges of England, the answers to Whic
are summarized by Lord Lyndhurst in Morn
VS.. Davis as follows:
First. That when husband and wife hay
opportunities of access, the presumption of lC
gitimacy may be rebutted by circumstance
inducing contrary presumption.
"Secondly. That non-access, or non-geneu
ating access, may be proved by means of sue
legal evidence as is admissible in every othC
case in which it is necessary TO prove phys
ical fact.
Thirdly. That after proof of sexual intel
course, evidence will not be admitted excel
to disprove the fact.
Fourtbly. That sexual intercourse is pre-
sumed, unless met by such evidence as sati;
hes those who are to decide that it did not tab
place" The full answer to the fourth que'
ton is as follows:
That in every case where child is Dol
in lawful wedlock, the husband not being SCI
arated from his wife by sentence Of divorc
sexual intercourse is presumed to have take
place between the husband and wife, until TIL
presumption is encountered by such evidenC
as proves TO the satisfaction of those who a
to decide the question that such SEXUAL intel
course did not take place at any time whe
by such intercourse, the husband could accol
ding TO the law of nature, he the father Of sue
child"
The House of Lords, in the Morris We Dav
case found as follows: l copy the head not
"Husband and wife, after living together f
! ten years, and having one child, agree TO SCI
arate. They accordingly afterwards live
apart. but within such distance as affordC
them opportunities of sexual intercourse, Il
husband not being impotent
Held, that the presumption Of law in tay
of the legitimacy Of child begotten and bol
OF the wife during the separation, may be T
. butted, not only by evidence TO show that Il
husband had not sexual intercourse with he
but also by evidence of their conduct, such
that the wife was living in adultery, that 81
, concealed the birth of the child from the hu
band and declared TO him that she never HI
such child; that the husband disclaimed {
knowledge of the child and acted, up to h
l ueatn, as IL no buCn Cnliu was III cAiSlenC
and also, that the wife's paramour aided
concealing the child, reared and educated it
his own and left it all his property by will
In the case before me there was no attem
TO show non-access of the husband. The CIV
dence of an intimate acquaintance of the FAM
is to the effect that during the period cover,
by 4 year or more previous 10 the birth
plaintiff, Kaiawa and his wife lived togeth
up stairs in a house in which Hopkins semi
| lived
Here, then, not only had the husband al
wife opportunities of access from which sexu
intercourse is presumed to have taken plac
but there IS no evidence even tending to e
counter the presumption of such intercours
For, the evidence of the acts of Hopkins Sc
in relation to the child as well as the appea
ance of the child, do not tend to disproye q
! presumption OF sexual intercourse of the hu
band and wife; they are even quite consiste
with it. These facts do tend very strongly
show that Hopkins sen. had sexual intercour
with the mother, but it is the policy of the Ia
not to encourage the admission of evidence
this character, and in order to protect the ma
riage relation, the presumption in favor
legitimacy must he sustained in n case ii
this, according 10 the third answer OF {
Judges, above cited from the BGmJurs Pee0
case, that after proof of sexual intercour
(of the husband and wife) evidence will not
admitted, except to disprove the fact"
can find no case at all approaching q
| view urrred Inv defendant's counsel Tho n,