The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-03-28


heirs OF an intestate.
Keahi VS.. Bishop Haw. 1856, distinguished.
OPINION OF THE COURT PER JUDD, C. J.
This case is presented on bill
of exceptions from the Circuit Court
of the Fourth Judicial Circuit. 1t is
an action of ejectment to recover
land described in Royal Patent num-
Der 1923, to Naehu, situated at ka-
paia, in Hanamaulu, Kauai. The
plaintiffs put in their case tending to
show that they were the great-grand-
daughters of the patentee, Naehu.
Among the evidence for the defense
was certified transcript of certain
proceedings had in probate before
the late Circuit Judge McBryde.
They were in substance petition by
Lumai that he be appointed admins
traitor OF the estate OF Naehu, alleg-
ing that he died intestate on the 10th
November, 1849. This petition is
dated the 26th November, 1867, and
the Court appointed the 18th Febru-
airy, 1868, for the hearing of same,
and the usual notice to all persons
interested was published. At the
hearing on the day set, the Court
took the testimony of several wit
nesses as to the genealogy and des-
cendants of Naehu. The property
was shown to consist solely Of the land
in dispute. Nika, the father of the
plaintiffs, was present in court and
testified as to the property, but no
testimony appears to have been given
by him as to the relatives of Naehu.
All the other witnesses say that
Naehu died without issue. The record
shows that the Court thereupon deci-
ded that the property should be
equally divided between Kaelehonia,
Lumai, Maria, Kauwe and Mailolo-
as being the issue of MI, who was the
son of Kanehuehue, a brother of Nae
hu on the one hand. and Paulea a
child on Laau (w.), who was the
daughter of Iaa, another brother of
Naehu, and Laau, child of Waineke,
child of the Laau first mentioned,
on the other hand.
The presiding Justice then charged
the jury as follows:
'sThe defendant at this stage has
put in the decision of Judge Nc.
Bryde in the probate proceedings in
the estate of Naehu, deceased, which
compels the Court, having admitted
this as proper to be introduced into
the evidence, to instruct you positive
ly with regard to your verdict. Be
cause at that time Lumai brought
these proceedings and evidence was
taken and Nika was present, repre-
senting his wife and children then, if
he had any, and the decision was
given and not appealed from, pro
ceedings known to Nika and not ap-
pealed from. This decision excludes
the theory of direct descendants of
Naehu through Keliikupololei, his
supposed daughter, as claimed by the
plaintiffs, excludes that line of des-
cent entirely and finds other heirs to
the property, including the defend
ants. And the law is, that a question
of pedigree having been settled by
judge of probate cannot thereafter be
re-opened; it is settled once for all.
Not being appealed from, it is finally
settled, and that excludes all of the
testimony that has been given to you
in regard TO the descent from Naehu
through his daughter Keliikupololel.
And that hainO the sole iseua the sole
foundation for the claim of the plain
tiffs, it destroys their claim before
this Court, and so it is my duty to in
struct you to find a verdict for the de-
PENDANTS. The responsibility is on
the Court as question of law"
We are of opinion that the charge
was erroneous The proceedings be
fore the Circuit Judge were upon
petition for letters of administration.
Passing by the question as to
whether the Probate Court had au-
thority at all to entertain a petition
for administration on an estate con-
sisting solely of real estate of an
intestate who had died seventeen
years before, when all claims to
be settled by the administrator would
have been barred by the statute of
limitations, it is very clear that the
Judgment rendered by the Circuit
Judge was not responsive to the pc
tition. His judgment was that the
intestate's land should be equally
divided between certain persons