The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-03-25

told We believe that the word was employed in clause e
by the tesator meaning the whole land within the orn
the whole enclosed lot it then and had been t
tofore used-and that it was his intention 70 devise +b ~
of said lot to A. r. Judd. That intention is snfH.i,
expressed IN the will The word kuai was not used in -
technical sense, be rejected as false description
applies only to part though the greater part and not Tho
whole of the land intended be devised: the element If
description uppemost in the was the pa and m
the alma kuai Falso dcnonstrdtio non nocet is we'll l
lhed maxim.
1t urged by counsel for the plaintiff that the facts I
Mr. Judd guardian of Irene H. in 1886 included tbo ,
now IN dispute IN an inventory of property belonging to his
ward and that in 1878 1874 petition for the settlement
of the boundaries of the land of Mkt he alleged in substance
that this piece belonged Irene and procured ROYAL Patient
TO be granted in the of John Ii confirmation Of h
title awarded by L. G. A. s241 and that he at one time
consented arrangement to the effect that Irene should
convey the piece his Charles show that Mr. Judd him
Sself construed the will devsng property in question
: himself
These acts do show that Mr. Judd entertained doubt as TO
whether he did acquire title devisee but evidence in
the likewise shows that also entertained doubts as
to her title Indeed, the question aordng for arg-
ment on both sides Mr. Judd guardian entering the land
in the inventory and in obtaining the settlement boundaries
acted IN the greatest of good faith intending crupuousy to
guard whatever interest if any, his ward might have in the
land Constituting the VIII do in this evidence no
to prevent the awarding of Judgment in his favor or in
that of his representative.
1t not claimed that the present defendant who sole
devsee of Mr. Judd estopped of law from now
asserting title in herself adverse possession the part
of the plaintiff its predecessors relied upon for
recovery.
TO- Plaintiff excerpts that portion of the decision which
it stated that there absolutely evidence introduced
the showing either directly indirectly that the land
question included in the devise Irene III and the
granting only upon condition that plaintiff 5000 attorneys
fees of counsel for defendant and all costs of plaintiffs
for leave the and introduce proof the points
GAY that the devise Irene in the will of John included
the demanded premises if the not elsewhere devised
to A. F. judd and ) that Irene the sole heir law of
John Ii.
The clause of the will which, is claimed by plaintiff devis
the piece in controversy Irene that first above quoted
The land there described 'Iana within Makiki' and
the contention is that 'Miki' is within Makik So far as
evidence concerned unable find any the record
which tends establish this alleged fact. The only witness
who was examined the point Hawaiian eghtysx years
of age, who had resided this Island 1857 said in
the question, Is that place down there called
MakkiV Il heard of being called Mak; all that
know of Makki mauka and when floods would along
of the floods would from Makk down that way
Mkt in Pawaa but does appear that Makk includes
Pawaa.
Assuming however what plaintiff desired to prove, that
'Mik and therefore, the piece in dispute within Makki
that the clause in question includes land in Pawaa not within
the geographical limits of Makik we nevertheless of the
opinion that there being other land which would pass Irene
under that clause thus construed the specific description and
devise of the spa A. Judd should prevail and carry with
the strip in question: although the originally part
of Mkt This also the view taken by the Circuit Court
Regarding, for the purposes of this case the conditional
granting of the motion reopen in effect denial OF that
motion the committed if any, periodical to the
plaintiff for the already stated and for the further
that the fact that Irene the sole heir law of John
Ii proven by other evidence, undpued, in the e
paragraph 5, page 3, of Exhibit j.
The exceptions overrued.
Maqoon te Thompson, Kinney, Ballou McChndhGn and
H. A. Bigeloc, for the plaintiff.
Robertson te Wilder for the defendant.