The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-03-25

netiti0n for letters of administration,
70 order real estate divided among the
heirs Of an intestate.
Keahi vs. Bishop 3 Haw $50, distinguished.
OPINION or THE COURT PER JUDD, c. J.
This case is presented on bill
OF exceptions from the Circuit Court
Of the Fourth Judicial Circuit. It is
an action of ejectment to recover
land described IL Royal Patent num-
Der 1923, to Naehu, situated at Ia
paia, % 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 18th 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 SHELLY 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 Nsehu.
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 Kaeiehonia,
Lumai, Maria, Ksuwe and Mailolo-
as being the issue of Mu, who was the
son of Kanehuehue, q brother of Nae
hu on the one hand, and Paulea a
child OF Laau (w.), who was the
daughter OF 1aa, another brother OF
Naehu, and Laau, child of Waineke,
a child OF the Laau first mentioned.
on the other hand.
The presiding Justice then charged
the jury as follows:
1.-The 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 question
OF pedigree having been settled by a
Judge of probate cannot thereafter be
re-opened; IL 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 being the sole issue, 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 verdict for the de
PENDANTS. The responsibility is on
the Court as question of law"
We are of opinion that the chargs
was erroneous. The proceedings be
fore the Circuit Judge were upon {
petition for letters of administration
Passing by the question as t.
whether the Probate Court had au
thority at all to entertain petition
for administration on an estate con
sisting solely of real estate of al
intestate who had died seventeen
years before, when all claims tt
be settled by the administrator woult
have been barred by the statute o
limitations, it is very clear that tn,
Judgment rendered by the Circui
Judge was not responsive to the pc
tition. His Judgment was that tn,
intestate's land should be equal,
divided between certain persons
whom he found to be the heirs. Thi
could not be done on petition TO
letters of administration. 1t was
usurpation of jurisdiction that wa
common enough in the Probat
Courts of fifteen or twenty years age
Undoubtedly such findings were gen
orally in accord with the real facts
and for that reason have been yer,
generally acquiesced IN. But neithe
by statute nor by presidents doe
such an authority exist IL the pet
ton before the Court was for the ar
pointment of an administrator. a
that was coraDa JUDGE was either th
appointment of one or the refusal t
appoint one. We hold that the Coul
had no authority upon the petitio
for letters to order the real estat
partitioned among the heirs.
This case differs radically fror
keahi VS.. Bishop, 3 Haw., $50. Their
the administrator had been a,
pointed, had settled the debts an
brought money into Court to be di
trlbuted to the heirs of the intestat
The Probate Cnnrt uas hold 70 bo1