The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-25
OPINION OF THE COURT BY PERRY. j

This action of eectment brought tri-
angular piece of land situate the ouheastery of
King Street and Waikiki Road, Pawaa Honolulu, and
containing of LOS This piece is part of the
land called 'Mik" which contained of 35 A acres,
and which awarded the late John by Land Commission
Award No S241. The great bulk of the land the Eva
side of the Waikiki Road the opening of said road through said
land having left the strip in controversy the Koko
Head side
During time also acquired from the Govern
men but by purchase for the of 1905 parcel of
land adjoining the Koko Head side the piece in dispute,
containing of 46 said premises being described
in r. P. Grant No 2616.
John H. being possessed in fee the time of his death of
the lands Just mentioned well of other lands died 1870
leaving WILL clauses of which are as follows "Akah
Airline Haalou Ii kun kakamahne pono ka hooilina
penei: Hookahi Iii alma oko Makki Kaneia-
lole Ike kumu la ka wal hki kai Pawaa" "Elima
kuu alma kuai ola ka Pawaa pill la ka pa Kauka
ma ka Waikiki o Ike Aanu Aupuni hoo la Waikiki
Kai A F. Judd ola kona alma au hooli ne The
first of these passages may be translated thus First Il
devse to Irene Haaou H. my daughter and first heir the
following: Iii alma within Makki Kaneialole
that is the of the until reaches down to Pawaa
and the second leaving for the present the word
the original Fifth Ny bought land that pa at Pawaa
adjoining the belonging Kauka Waikiki of the
Government road running Waikiki Kai that pa is for A. F.
Judd that is his land which devise to him.
Irene the sole heir Of her father and the latter died
lneate as to of his property the title thereto passed to
her by descent The plaintiff corporation has acquired by
nene conveyanees whatever title if any the piece
In controversy either by virtue of the provisions her fathers
WILL by inheritance Plaintiffs claim in the present case is
that the land devised by the first clause of the will
and not to Judd by the fifth clause, and that if not
devised by the first clause Irene inherited The defendant
on the other hand contends that the land was devised to
Judd by the fifth clause, and not to Irene by the first
1t is practically undiputedin any event. the Circuit Court
before which the tried jury waived found from
the evidence, and there evidence sufficient to sustain the
hndnghat prior and the time the death of the s
taor the land granted by R. P 2616 the parcel now in
dispute were together enclosed by substantial stone WALL and
used as lot without fence other structure DIVIDING
them or distinguishing the from the other The difference
OF opinion as to the construct of the fifth clause arises from
the fact that only the land de- hed in R. P 2616 and not
that called Mkt" "bought land l. e. the term was
used by the tesaor probable in its ordinary accep
ton as distinguishing land acquired by purchase from that
acquired by award of the Land Commission and not in its
technical sense denong land other than that acquired by @
cent III the word pa used by the meaning an
enclosed lot then there is conflict in these two elements of
the description If the other hand the word used an
nnectosed lot the word kua was used in its technical
sense IN either of such there conflict result
reached IN the however, being quite different
reached in the other The trial co took the view that the
word kua used in its ordinary sense that by the word
pa the testaor meant the whole lot within the substantial
enclosure and that the words ana kua should be rejected
as false description and accordingly found for the defendant