The Hawaiian gazette., 1905-10-17
TWO SUPREME
COURT DECISIONS

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 ipjunc-
ton against an action of ejectnent
brought by the purchaser, and for an
! accounting and order to pay the
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, McClanahan & Cooper for de-
PENDANTS.
QUESTION OF INHERITANCE.
Justices Hartwell and Wilder sign
a decision of the Supreme Court in
the case of Annie Kealoha and Keoni
Williams VS.. w. r. Castle, trustee, on
a question reserved from a Circuit
Judge of the First Circuit. Chief JUS
tice Frear concurs with an eXplana-
ton, the decision being to advise the
I judge below that the demurrer to the
complaint ought to be sustained. T.
NJ. Harrison for plaintiffs; A. G. NJ.
Robertson for defendant.
1t 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
testator's will would be payable to the
children of a deceased child of the
testator. The plaintiffs are illegitimate
children of son of the testator born
while their father was living in Jaw
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 pavments 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," Plaintiff.
did not deny that this decision applied
to the present case. but claimed 1t wa!
bad law and ought not to be treated
as precedent, and moreover that tn,
instruction given to the trustee by
Justice Bickerton made the matter re-
1udicata during the entire administra
ton of the trust estate.
In rendering It's decision the cour
says: 1--WE are not prepared to hol,
that the Kekula decision was wrong
Under the constitution and laws ii
force at the time of that decision tn
court had power to declare a statut
unconstitutional which it deemed II
be contra bonos mores." AS a matte
: Of fact. in Kinimaka VS.. All Fai, tn
court held statute unconstitutona
l which enacted that mo marriage o
Hawaiian woman with a Chinamal
> shall be invalid by reason of a preyiou
marriage of such Chinaman. in China