The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-05-29
Supreme Court of the Hawaiian
Islands. April Term, 1890.
MARIA KAHA1 VS.. KAma1. Nv,
EJEcrMENr. JURY WAIVED.
DECISION BY BIcKERToN. !.

EXCITEMENT. JURY WAIVED.
DECISION BY BICKERTON. ].
This is an action of eiectment to
recover an undivided half of a car-
tam piece OF land situated in Manoa.
Island OF Oahu, being same described
IN loyal Patent No. As, to Makaulii.
The plaintiff claims under deed
dated 4th December, 1873, from Kai-
nulaula, who inherited from his wife
kanekoa, alias Keko, she having in
herited from her first husband. Ma
kaulii, the patentee.
In the deed from Kailiulaula. there
Is an interlineation "a me Helu Is. y
land also No. 45) and a certificate
written in the margin, and signed
u. Kalakaua, to the effect that the
interim ation was written by him
with the consent and in the presence
of kailiulaula and in the presence of
Kahai and Palohau.
1t appears from the date of the
deed and acknowledgment December
4, 1873, and certificate in margin
dated December 6, 1873, that this in
terlineati0n was made after the exc
cution of the deed. This deed is
objected to by defendant who inner
tied the other half of said land from
said Makaulii, to which claim there
is no dispute, nor does the defendant
dispute that Kanekoa Inherited one
half OF said land from said Makaulii.
After a careful examination of the
law and authorities, I find that if on
the production of an instrument it
appears to have been altered, it is in
cnmbent on the party Offering it in
evidence. to explain the appearance
or alteration; and the intent with
which the alteration was made; that
it is matter of fact, to be ultimately
found by the jury in this case by
the Court upon proofs to be ad-
duced by the party Offering the in
strument in evidence. That docu-
ment is not affected by its alteration
when made by consent of the parties,
subsequent to it's execution. "What
they have made they have right to
vary"
IF the alteration was made in the
conveyance, even after its execution
and delivery, and for the benefit OF
the grantee, If made soitA the knowledge
and consent Of the g'antor, it would be
valid. This is all q matter of proof
and the burden is on the plaintiff.
His Majesty who was a witness IN
this case, testifies positively to the
fact that he made the interlineation
and wrote the certificate in the mar.
gin when he was clerk in the land
Office, in the old Government build.
ing; that he did it at the request OF
Kailiulaula, he being present to
gether with others, naming them
that it was done because it was an
afterthought of the parties, as they
found that the deed did not cover
the one-half of the land described in
Royal Patent No. As. This is sup
ported by the evidence of several
witnesses, as to the fact that wher
Kailiulaula returned from Kauai af
ter his wife's death in 1873, he told
them he had come down for the pur-
pose of selling these lands to plain
tiff, and that he had done 80. There
is also evidence that plaintiff, abou
that time, put q man on the land tx
cultivate it for her on shares unit
the water was diverted by the Gov
eminent, when the land remained
unoccupied until about three years
ago when defendant took possession
of the land and leased it to Chinese
I find that the plaintiff has provet
what is necessary to establish tn
deed and make it valid.
The defendant claims that Kali
ulaula could not inherit from hiswife
that there was nothing definite as t
her death, or that she had no lega
heirs surviving her. Certainly tn
evidence is not very strong on thes
points, but we have the evidence o
several witnesses, that she, Kekc
told them when she was living a
Manoa with her husband, that sh
had no relatives living, and that the.
were all dead. And the evidenc
that Kailiulaula told them his wifi
was dead, and that was thereason b
came here to sell her lands and re
turn to Kauai to 1--we. He told Mari
Kahai that his wife died in Decem
Der, 1872, about one year before b
came down in December, 1873, tn
time he made the deed.
4 Previous to the Act Of June Bird
1872, the husband could not have in
herited any of his wifes estate
: there survived her, father or mother
or brother'or sister. =
After the Act of 1872. it the wife die
leaving statutory heirs the husban
would inherit only one-half OF hi
, wife's estate, in this case one-fourt
J of the land described in Royal Fl
tent No. As. But the plaintiff claim
, Kanekoa died leaving no relative
surviving her, and therefore be
, husband inherited the whole OF he
estate: is there sufficient proof {
this. It is now seventeen years 9
more since the deed was made, an
It was alleged that she was dead. !
think under the circumstances tn
, proof is sufficient to warrant th
!, Court in finding that Kailiulaula il
herited the whole OF his wife
estate.
) The plaintiff claims $50 damage
! but has failed to introduce any eV