The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-01-21
OPINION OF THE COURT PER JUDD, c. J.

OPINION OF THE COURT PER JUDD, c. J..
This is an action of ejectment for
lot of land on King street, Homo
lulu, originally granted to nj. Ke-
kuanaoa by royal patent number
1924. The essential facts are that
one j. Moanauli died intestate,
seized Of this land; that said intes-
tate left widow, Mohole, the de-
PENDANT, and two daughters, one
Rosina, the plaintiff, by a former
wife. Namoomoo, and one kalani-
kapu born to him of the defendant.
A deed of partition was made on the
Doth October, 1887, between the
above named widow and daughters
of j. Moanauli, in which the prem
ises in question were set off in sew
crafty to Kalanikapu, who thereafter
died at the age of fourteen, unmar-
ried. The two questions raised by
the exceptions are, LIST, Under the
statute of descent, does this prop
erty go to the mother (defendant) or
to the half-sister (plaintifl? I'd,
Does the deed of partition affect the
plaintiffs claim?
By the 1448th section of the Civil
Code if the interstate be woman
and leave no husband nor issue her
estate shall descend to her father
and mother, or to either of them if
only one be alive. By this law Mo
hole the mother as the sole surviving
parent would inherit the land from
Kalanikapu her daughter. The next
section, 1449, is as follows:
eff the intestate shall die leaving
several children, or leaving one
child. and the issue of one or more
others, and any such surviving child
die under age, and not have been
married all the estate that came to
the deceased child by Inheritance
from such deceased parent, shall
descend in equal shares to the other
children of the same parent, and to
the issue of any such other deceased
children, who shall have died, by
right of representation"
By this law Rosina would inherit
from her half sister the land coming
to her, Kalanikapu, from their father
j. Moanauli. Are these two sections
repugnant to each other and if SO
which shall control?
Section 1448 states the general
rule governing the descent of prop
erty that in case of failure of issue
or husband, the parent inherits.
Section 1449 states q more special
rule that where the estate came to
the children from an intestate par
ent and one child dies in minority
and unmarried the share of the
child so dying goes to the surviving
child or children. We think that
the particular enactment Is opera
tive in the particular case and that ii
is not repugnant to the general prOvi
sion in section 144S. This is in con
formity to the rule for the interpre
tation of statues as laid down by
Endlich, Section 800 and cases there
cited. Where there is in the same
statute particular enactment, and
also a general one which in it's most
comprehensive sense would include
what is embraced in the former, the
particular enactment must be opera
tive, and the general enactment must
be taken to effect only such cases
within its general language as art
not within the provisions of the par
ticular enactment" This view car
ries out the fundamental principle
Of the statute of descent that pro
perty should go from parent tc
child and unless the deceased child
has by marriage acquired new rela
tions and responsibilities, its share
should go to the other children, and
not ascend to the parent.
The part of section 1448 which up
plies to interstate females, being
passed in 1872, subsequent to the
I449th section, which was in the orr