The Hawaiian gazette., 1885-01-21

and deeds and thereafter till a. 'very few days
before his death his mind was usually clear,
and he could see and recognize those people
be knew and talk nationally with them. He
was feeble both-in mind and body owing TO
bis great age, but he was not insane. He was OF
fair understanding for one of his years. Doubt
less when be executed the will and deeds re-
ferred to, and a prior will in favor of his wife
dated July 30, 1881, he was Of sound mind,
aud of sufficient capacity 10 make such instru-
ments.
But twenty days passed between the signing
Of the will to the plaintiff and the deeds to the
defendants. There is no proof of change in
bis brain power during that time. In order
10 recover then, She plaintiff must show that
Kalaau was deceived and cheated and did
not know what the deeds meant, and did not
intend to vest the land in his wife-that he
was unduly controlled and influenced by fhe
defendants, and by them or one of them in
duced to do what he did not comprehend.
The testimony bearing on those points is
voluminous on both sides. Kalaau and IA
pika were married in 1874 and lived together
in harmony until sometime after the execution
Of the will in Kapika's favor bearing date
July 80, 1851. After that, and at the time of
the making of the will of October IS, 1852, in
favor Of the plaintiff, the plaintiffs proof tends
10 show that Kapika was untrue TO her mar
rage vow: that the defendant Alakema Ma
one was her paramount; that Kalaau knew it
and therefore felt hostile 10 her and designed
TO disinherit her on that account by the will
to the plaintiff. The plaintiffs proofs also tend
to show that Kapika failed many times pro-
perly to attend to the physical wants Of Ka-
laau during the last year of his life.
The defendants were married about six
months after the death Of Kalaau. They both
swear that they were not guilty of adultery
together and their proof tends to show that
Kaaau was we'll and faithfully treated by
Kapika as his wife up TO the time Of his death.
Kapika is still young woman apparently
about thirty years old, and her husband is
apparently younger than she.
Kalaau and Kapika had no children, and
by the proof Kapika was Kalaau's sole heir.
If So, but for the will to the plaintiff, Kapika
would have taken all the property BY descent,
and half of it, in addition 10 dover, in any
event.
BY the deeds to defendants, Kalaau reserved
to himself, in effect, a life estate il his pro-
perry.
The plaintiff is woman of middle age and
swore that she was an old friend of Kalaau,
though not rclative-that she had known
him fronl.childhood and in her girlhood had
staid at intervals in his family. Just before
the will was drawn she visited Kalaau's
house and learned that he was staying with
his wife in rooms adjacent TO Queen Kapio-
lani's stables. She went aud found him there
lying on a mat on the floor, but partly dressed
and apparently uncared for Alakema and
Kapika were also there. Kapika says the
rooms were rooms Of Alakema's sister. Ka-
1aau araipaf Eop;kajs IL,
once and went with plaintiff to his own house
Two or three days after that the will to plain
tiff was drawn by native, Kukahiko, pro-
cured by plaintiff at KaIaau's request. Plain.
tiff swears it was. drawn by Kalaau's express
direclion-that be said be did not want tc
make deed but will 10 her, because if he
decided to her she would not take care Of him
Plaintiff says she told him TO deed BALI to his
wife but he said no, as his wife did not take
care Of him. For a couple of months there.
after plaintiff furnished food to KaIaau and
collected his rents.
About December rs, 1882, plaintiff and Ku.
kalIiko saw notice pasted on fence on Kala-
aus premises, signed "Kapika" in substance
forbidding the payment of trent to any body els,
as she had bought the land of Kalaau. They
| went 10 Kalaau's house and plaintiffs version
OF the ensuing quarrel is that she told him sh,
had seen the notice by his wife that she haC
bought the land of him, and he at once be.
came very angry. He said he did not sell hi
place and that plaintiff must go to the Iawye
Hatch with him. He asked his wife If he haC
sold his property and she said no-he started
TO so and his vito held on to him and the,
| quarreled and struggled and fell down to
gether. Mrs. Rowland says Mr.. Hatch wa
sent for and came and said be drew the deeds
and Kalaau said he did not understand it so
Hatch left and Kalaau said he must have
lawyer TO annul the deeds. Kapika howeve
swears that Hatch asked Kalaau il he wishet
to set aside the deed and he said mo-" Mr.
Thurston came the same day with Kukahiko
and Kalaau showed anger and said that th
land was his-that he had not sold it-tha
there was a fraud about the land. Mr.. Thursto
failed to get straight story, and went away
and in four or five days returned and saw Ka
laau and his wife only. The plaintiff was no
then present. Kalaau's manner had changed
He was quiet and said at is done, it will do.
Mr.. Thurston's impression was that Kalaa
was oowed down by outside influence. Ka
pika says that at the quarrel the plaintiff an
Kukahiko told Kalaau that he had lost hi
land and would be like beggar in the street
if his wife had a mind to turn him out. H
asked will that be SO" and they said eyes,
and in consequence of that Kalaau got angr
with Kapika. That she did not tell him Ii
not sold his land.
From the plaintiffs evidence of Kapikas'
infdelity, and the lack of care to Kalaau, au
dissent TO the deeds, with his feebeness G
mind and body the plaintiff claims that sh
must prevail, That it is impossible to believ
he intended to do what was done by the deeds
As against this however come the stron
proof Of Hatch, and Widemannthe acknowledg
ing officer. Mr.. Hatch ssys that defendan
andKslaau and the sister of Alakema wer
present-that he thinks Kalaau handed hir
the Royal Patent. That he asked who was I
be the grantee in the deed-that they reptile
kapika-but be don't know who replied-tha
he then explained that Kalaau could not dee
directly TO his wife, but must deed to a thir
party and from third party to his wife, an
suggested Alakema 10 be the third party an
KaIaau said "yes.n That he then wrote th
deeds in Hawaiian and went near the partie
and read the deeds slowly 10 Kalaau. He as
scented TO them, saying yes from time to tim
as they were read TO him. Then Judge Wide
mann was called in and Hatch asked him I
explain. the deeds 10 the old man and he di
so. Judge Widemanu confirms the testimon
Of Hatch and says he took special pains TO CT
plain the matter to Kalsau and believes Il
understood it fully. II he understood Ii
will to the plaintiff and then knew the differ
enee between it and deed, / do not see ho'
he could fail TO understand these deeds. A
the quarrel he suggested the name Of Hatch a
the lawyer who he said had wr0nged him; 81
weeks had passed but he remembered hin
How can We believe be did not know VII;
was done ty Hatch and was 90 carefully e.
planned 10 him The after dissent is not sun
Gent to shox that be did not really inten
what was done by the deeds. II may hay
been Simulated rs suggested, 9 3ollify Mr.
Rowland. IL may bsfs boon q ned BY VIII,
Kapika says that they told him that he migf
be driven by heEiulo ihp iirceB destitute, whic
was untrue.
For fourteen a.onIhs affair the quarrel h
failed 10 bring al al Ia toset aside the deed
He sent for the plaintih and asked for the rer
she had collected for him. II is unnatural I
believe he was in fear all this time. The ma
ture Of the quarrel shows that be then had n
fear ef Kapika. The evidence dces not cor
vince me that he was ever in fear or coercec
The evidence Of constant neglect seems unre
liable, and, if he intended TO- consent 10 ah
deed, is futile. Isis only imporAnI as tend
ing to show the absence Of such an intention
he may have suspected or believed bis VIII
unfaiihful but if so be seeIns 10 have forgive
her or al least not to have sought any rsmed
against her; such forgiveness IS not impFDb
able. He had lived with her for many years
AS his wife she had right 70 ask him to pro
vide for her. Bat no'inhuunce seeking that j