The Hawaiian gazette., 1885-10-27
Supreme Court of the Hawaiian Islands,
In Equity. In Banoo. October Term, 1885.
Ruin PuUKAIAKEA AND KAILIo (k) VS..
HIAA, (w).

Petorc Jif5d, c. j. McCully and PyeStoH,J.J. ODin-
ion NJ the Court By McCmly, j.
The complaihants sci forth that they are hus-
band and wife, now elderly and infrm That
in February, 1881, they executed an instru-
ment in writing " as and for will and nothing
more and nothing less" The material parts
of this instrument translated from the Ha-
waiian arc as follows -" Know all men by
these presents that we Ruth Puukaiakea and
Kailio her husband . in considera-
ton of love and affection and one dollar paid
each of us by Bota Kuokoa Hoopii our beloved
grand-child, by these presents sell, grant and
confirm unto the said Lota, his heirs, execu-
tors and assigns forever Erecting des-
cent by Inheritance to plaintiff Ruth and de-
scribing the lands conveyed, including also
one parcel belonging to Kailio.) And we also
declare publicly that this conveyance shall
take effect with full power after our death,
but while we yet live we have the power Of
the lands. Therefore, by these presents
all of the above pieces of land together with
the houses and all the appurtenancUs belong
ing thereto are hereby conveyed TO Lota K.
Hoopii, his heirs, assigns, &c, forever, and
we bind ourselves, our heirs, &C., TO adhere
to this agreement"
The above was signed by the parties plain
tiff, with the signature of two witnesses to the
execution and delivery, and was recorded as
deed within the mouth.
Lola has since died intestate, leaving no
issue. His surviving parent has made quit
claim deed of interest in what remains Of the
lands conveyed. His widow, who is made
the defendant herein, is alleged to claim a
present right to the possession of one half
thereof.
The bill prays that the defendant may be
eUjoiied from making such claim: That the
devise intended in and by the said instrument
may be decreed TO have lapsed upon the death
10y Lota: That the instrument be vacated sc.
By the Court: 1t is quite likely that this
instrument was intended for a will as being a
deed which would render a will unnecessary,
but in no other sense. The grantor Kailio
gave his testimony, his wife was too infrm to
attend Court, and the subscribing witnesses
were produced and gave their testimony. The
evidence totally fails to support the position
that the plaintiffs intended to make an instru-
ment Of different purport or effect from the
one they executed although Kailio testi6es
owe did not intend that Lota's heirs should
have the property if he died before we did
we did not think of Lota's heirs at the time"
However all parties treated the conveyance
grant with reservation of life interest
to the grantors. The grantors remlined and
yet remain in possession and control of the
property. Two sales of parcels were made,
and the deeds were made by the holders Of
the life interest, the grantee of the remainder
joining in the deed and even permitting the
original grantors TO appropriate the proceeds
Of the sales.
The learned counsel for the complainants
contends that although the instrument may
have the form Of deed it is not valid for
sundry reasons. First, there is no proof of
delivery to and acceptance 10y the grantee
But it appears by what is stated above that
the grantee has signed two deeds in the char
acter Of roversiouer, that the subscribing wit
nesses certify TO a formal delivery, and that
the deed was placed on record Second, that
the instrument, considered as deed must be
construed to create freehold commencing IN
fvtyr0 and is therefore void by the rule of
common law. This Court has repeatedly de-
MED that the common law was in force e0
ItOHliRe in this kingdom. See The hiRg rS.
-AgRee Il al } Hav'n. LOG. Its technical rules
are ia force here only as they may be adopted.
This rule is based ON the necessity which
once existed, but has now passed away, OF
livery of seizin. 1t has been EXPIRE ssly
abolished by statute in many of the American
States which were bound by the whole CON-
mon law except as controlled by statute. In
this kingdom this rule has mover been adopted
by the Courts.
We DO not know that the question has been
directly raised upon any deed of like character,
but such deeds have been considered valid
See hcliikntdka0ls vs.. hdpdd, January, 1884. |
No injunction should issue. The plaintiffs |
have only 10 remain in possession of their |
estate.
The decree is affirmed.
NJ Thompson for compliments; Kinney 81 |
Peterson for defendant.
Honolulu, October 2Ist, 1855.