The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-10-17
TWO SUPREME
COURT DECISION S

Chief Justice Frear writes the unani-
NOUS opinion of the Supreme Court in
the equity suit of Koolau Male and
others against the trustees of the will
of the late S. c. Allen, to set aside
a mortgage foreclosure made under
power of sale contained in the mort
gage, to compel the purchaser to re-
convey the premises to the heirs of
the deceased mortgagor, for an injunc-
ton against an action of eJectment
brought by the purchaser, and for an
accounting and order to pay the
amount found due On the mortgage.
An appeal was taken from a decree
sustaining a demurrer to the bill and
dismissing the bill.
The decree is affirmed. H. E. High
ton and c. W. Ashford for plaintiffs;
Kinney, Mechanism & Cooper for de-
PENDANTS.
QUESTION OF INHERITANCE
Justices HartwelI and Wilder sign
decision of the Supreme Court in
the case of Annie Kealoha and Keoni
Williams VS. w. r. Castle, trustee, on
a question reserved from Circuit
Judge of the First Circuit. Chief JUS
tice Frear concurs with an explana-
ton, the decision being to advise the
judge below that the demurrer to the
complaint ought to be sustained. T.
NJ. Harrison for plaintiffs; A. G. M.
Robertson for defendant.
It was bill in equity to compel the
respondent as trustee under the will
of Joshua r. Williams to pay to plain
tiffS such share of the income of the
testator's estate as by the terms of the
testators will would be payable to the
children of a deceased child of the
testator. The plaintiffs are Legitimate
children of a son of the testatOr born
while. their father was living in law
full wedlock with his wife, but after the
death of the wife their father and
mother intermarried and thereby, as
the plaintiffs claimed, they were made
legitimate under the provisions of the
statute that "All children born out of
wedlock are hereby declared legitimate
on the marriage of the parents to each
other and are entitled to the same
rights as those born in wedlock."
1t is also averred in the bill that
the late Justice Bickerton, sitting in
probate in 1891, instructed the trustee
to make payment to the children, ac-
cording to the statute just quoted, and
that the trustee made such payments
to their mother until within a year or
two past, since when he utterly re-
fused to make any payments to the
children.
The statute in question was held in
Kekula and Husband VS.. Pioeiwa and
Paku,. to be inapplicable to offspring
of an adulterous intercourse, the court
saying that ANY other construction of
this Act would be subversive of good
morals and we can not thing that the
Legislature so intended it, Plaintiffs
did not deny that this decision applied
to the present case, but claimed it was
bad law and ought not to be treated
as precedent, and moreover that the
instruction given to the trustee by
Justice Bickerton made the matter res
judicata during the entire administra-
ton of the trust estate.
In rendering it's decision the court
says: 1--WE are not prepared to hold
that the Kekula decision was wrong |
Under the constitution and laws in
force at the time of that decision the |
court had power to declare a statute |
unconstitutional which it deemed to |
be contra bonos mores.'' AS a matter !
of fact, in Kinimaka VS.. All Fai, the |
court held statute unconstitutional |
which enacted that "No marriage of |
a Hawaiian woman with a Chinaman |
shall be invalid by reason of previous |
marriage of such Chinaman in China; |
provided that such marriage shall have |
been unknown to such Hawaiian
woman at the time of her marriage"
AS to Justice Bickerton's instruction,
it did not appear that there was any
notice given of the proceedings or that |
there was any contest Or issue made !
concerning the legitimacy of children.
Chief Justice Frear says: 81 concur
ON the ground that, although I think
the decision in the Kekula case err
We ought not to overrule it
under all the circumstances"