The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1883-03-10

hameha III, SIX or seven years subsequently,, /
July 9th, 1854. January II, 1855, and March
pc. 1855. They are no, His or Ahupuaas
described merely by name, but surveyed lots of
moderate size, one being but sixteenti.s OF an
acre. one l. Il acrce. Kamehameha III died on the
18th q! D~ccember, 1854. subsequent TO the award
Of all the pieces hut the first. The claims on be-
half of his estate are in the ordinary procedure
Of Land Commission business, rs when appllca-
ton was made by private persons for kuleaua
awards. Some of these were disputed, and testi-
mOny was taken u determine the rightful claim
ant. The tenth piece in the complaint was
awarded. BY Award 6.732. TO Nuuanu and Kan
ehaIneha Ill. and a deed OF PARTITION was made
August 20, 1855. between Nuuauu and Kane
hameha ". The pieces thus awarded passed into
the estate OF Kamehameha III, together With the
before mentioned lands reserved.
The estate of kamehameha III. as well as the
throne passed TO Kamehameha ~, who continued
to treat the Royal Domain, .as bis predecessor had
done. as his private estate. selling and mOrtgaglnR
pieces thereof as occasion suited. his cnnsort join
ing in The deeds 10 release her dover. Upon his
decease interstate, November 30. 1868. tie throne
passing to has brother BY the provision Of the will
of kamehameha Ill, the question OF 1.-the descent
of the property held and possessed by his late
Majesty Kamehameha ". came before the Su-
preme Court upon an agreed statement ut iacts.
II opinion of the Court was written by MIR.
Justice Robertson, whose Through and judicial
cast of mind was aided by the intimate acquaint-
ance with the origin of land tenures IN tins hlng-
dom. derived FROM his labors as one oi the Board
OF Commissioners to quiet Land Titles. The Court
had access TO the journals OF the PrIyy Council,
and 10 the records OF the transactions leading
to the present system of land titles. and the pro-
gres> oi IDEAS and events is luminously set forth in
the decision which must always remain among the
most Important contributions to Hawaiian HIS
tory. 2nd llaw. Rep, p. 726.
As having a controlling influence on Tire findings
IN this case. and hayIn: been the basis oi suose-
quent legislation. it IL well To quote at large here
the concluding paragraphs of that opinion
''ln our opinion. willie it was clearly the inten-
ten of Kamehamcha III. to protect The lands
which he reserved to himself out OF the domain
which had been acquired by hIs family through
the prowesr and skill ni has father. the conqueror.
from the danger OF being treated as public domain
or Government property. it was also his intention
to provide that those lands should descend TO his
heirs and successors, the future wearcrs OF the
crown which The conqueror had won; we under
stand the Act of 7th June. lS4S. as having Sc
cured both these objects. Under that Act the
lands descend IN fee, the inheritance being limited
however To the successors to the throne. aud each
successive pOssessor may regulate and dlspnse oi
the same according to his will and pleasure. as
private property. in like manner AS WINS done by
KaInehameha Ill.
81. In our opinion the fifth clause Of the will of
Kamehameha Ill. was not necessary to pass the
reserved lands to Kamehameha ~, any more
than the first clause was necessary TO pass him
The crown. He was entitled TO inherit those
lands by force Of the Act of 9Th June, l848, when
he succeeded to the crown, IN virtue OF the
proclamation made by his predecessor with the
consent of the House of Mobiles, and he was en-
titled as the ad Dpted son of Kame!,ameha Ill. to
inherit the remainder of his estate no: devised to
any one else, subject to dover.
We are clearly Of opinion, also, that Her
Majesty Queen Emma is lawfully entitled to
dover IN the reserved lands. except 50 far as she
may have barred her right therein by her own
act and deed. There is nothing in the Act OF
7th June, l848 which can be understood as
taking away the Queens right of dover in the
lands therein named nor is there any Law OF
THE Kingdom which renders the matrimonial
rights Of the wife of the King any LEES than or
any different from those OF the wife of any private
gentleman. Such was unquestionably the under
standing OF both Kamehameha Ill. and his sue
cessOr US to dover in those lands, which are to
be dealt with in all respects as private inherltable
property, subject only to the special Legislative
restriction on the manner OF their descent.
- But His Majesty Kameharneha ~. was pos
sessed Of other property, both real and personal
at the time Of his death. not affected with the
special character attached to the reserved lands.
The descent of that part Of his estate must be
governed by the general law of Inheritance and
distribution, and Her Majesty Queen Emma is
therefore entitled as statutory heir to one-half OF
that property, after the payment thereout OF such
portion of the late Kings debts AS are not
specially charged by mortgage or otherwise upon
the reserved lands. Debts OF the latter class
ought clearly to be paid out of the estate en-
cumDefeu tHereWltn.
In consonancc with the findings of the Court,
the Legislature passed the Acts Of December 81
: 1864, " 10 make IL permanent settle Inent on Her
Majesty Queen Emma, - and OF January 4, 1865,
TO relieve the Royal Domain from incum.
brances, and To render the same inalienable.
The former provides an annuity to Queen Emma
on condition of her release of dover IN the Royal
Domain. By the second Act the Government il
authorized 10 issue cxchequer bonds for the pay.
ment Of mortgages on the Crown lands, to be re-
l paid with interest from the income thereof. In
1866 the Legislature assumed the payment o
a these bonds. and released the estate clear to the
Commissioners.
1t Is plain from the foregoing citations and
statements that the premises here in question are
: not a portion of the Crown lands of which the
control is vested in the Crown Land Commits
sioners who are here defendants, and that theJ
5 d descended to the personal heirs OF Alexander
LiholIhO, who was Kamehameha ".
The learned Attorney-G General, on the part o.
the defendants, submits that the plaintiff il
? estopped from asserting her legal title on two
: grounds
l. That if it had been the property of Kane.
hameha ". it must have been sold to pay his
3 debts.
2. That she having accepted the relief from the
2 Government, the Crown has DOW acquired thi,
{ property.
lie Introduces the testimony of Governor ). 0
= DOminiz to this effect, that he was the admins.
} TRAITOR Of HIS Majesty Kamehameha ", succeed
= ing the late Mr.. w illiam Webster, on the deccasc
OF that gentleman, and continued administrator
/; till the estate was settled. Pursuant to orders
l from the Probate Court he sold. as he supposed
! all the private lands of the Royal decedent. liz
took Possession OF the Pa Moo, the lots at Wal
kiki, and the other lots embraced in this action
No claim was made at that time by the heirs
Witness was a Crown Land Commissioner iron
1861 TO 1873, and the agent for Crown Lands
lie was also the business agent for Queen Emma
from 1864 to 1874. lie did not as such agent
sid ff.F ftar .IL--- a. - 1T -
l These lands would have been old at that time il
he had supposed they were Of tie estate of Kane
hameha ~.
Cross-examination-l don't remember a mort
gage on Pa Moo, but think there was one. Re.
r ceived the income from Pa Moo. the lands Al
D Waikiki and at Lahaina during the period of MI
cOmmissionership. The lands sold were direct
grants to or purchases by Liholiho. Considered