The Hawaiian gazette., 1905-11-14
KINDNESS
REWARDED

BY decision OF the Supreme Court
woman at Kalaupapa comes into pos
session of q valuable piece of land at
Lahaina which was devised to her by
n fellow-woman at the Settlement as
a reward of kindness bestowed on the
testatrix in her dying days.
Exceptions of defendant in the eject
ment suit of J. A. Magoon, executor,
VS.. Pioneer Mill Co., Ltd, from the
Second Circuit Court are overruled by
a unanimous opinion OF the Supreme
| Court, written by Justice Hartwell,
with concurrence of Justice Wilder and
| Circuit Judge De Bolt in place Of JUS
| tice Frear The decision says that
most of the twenty-seven exceptions
appear to be frivolous" J. Lightfoot,
j. A. Magoon with him on the brief,
for PLAINTIFF d. II. Case. with whom
j. L. Coke and A. II. Crook were on
the brief, and s. H. Derby for defend
ant.
1t was an action to recover possess
sion of about one and one-half acres
of land granted September Is. 1851, to
Puali, and for $500 damages for its de-
tention. The sole defense was adverse
possession and judgment was given
that the plaintiff have restitution and
possession of the land, and recover Of
the defendant $500 damages.
At the trial Magoon filed suggestion
of the death of the original plaintiff,
the widow Of Kapakahi, heir Of the
patentee; that her will was probated,
and he as executor had letters testa-
mentary. Therefore he asked to be
substituted as plaintiff The defend
ants attorneys saying they had no OBJ
lection, the court allowed the executor
to be entered as plaintiff. 1t Is held
by the Supreme Court that, although
In law the executor was not entitled to
possession of land. his right in the
Judgment at issue could not be ques-
toned under the general exception to
the Judgment as contrary to the law
and the evidence and the weight of evil
dence," since no ruling had been made
on this point of law at the trial and
the defendant had acquiesced in the
substitution of the executor as plaintiff.
The other controlling point now de-
cided is that the court below properly
refused to grant a nonsuit for adverse
possession, because a minor child OF
the widow was living when the claim
ed adverse possession began and the
statute does not run against a minor,
also because evidence of adverse pos
session of a house on the premises
would not include the entire parcel, ir
| which We're six taro patches, unles:
possession was taken under paper
title or colorado claim.
The whole trouble arose from a mis-
take of ]. w. Kalua. He was admin
istrator of Kapakahrs estate AM
bought certain property mortgaged b,
Kapakahi at a foreclosure sale on Apr
/, 1899. The land now in dispute wa
not included in the mortgage, but Ka
! lua, thinking 1t was. conveyed 1t o
June IS, 1892, to William l.. Decoto, reI
resenting the Lahaina Coffee & Fru
! Co., which in turn conveyed 1t
Pioneer Mill Co. on August "a, 190
The widow of Kapakahi went to tn
leper asylum on Molokai in Septembe
: 1890. The child dying between tha
date and the bringing of this actiol
} February 6, 1901, the estate vested
the widow, who died November 8, 1870
leaving a will under which Magoo
was made executor.
= Justice Hartwell perpetrates the 70
lowing pleasantly in the opinion: 81
the further evidence in rebuttal thi
n the witness never saw the Rev. Pail G
|. the premises between Kapakahi's deaf
and the widow going to Molokai, Il
n defendants objection that this WI
negative testimony having no bearir
/. on the case, is certainly tenable, b
neither does the exception have ar
BY her will the widow devised II
e property now recovered by her exec'
r tor TO Mrs. Fanny Babcock, a Ites
dent of Kalaupapa, in consideration
}. kind treatment from the devisee.