The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1910-09-01
RE0PENS OLD WILL
CONTINUED from rage 0ne.l

cordance with the constitution of the
Republic of Hawaii authorized two
members of the bar of the Supreme
Court to sit in the places of the dis
qualified judges at the trial of the said
case. The court, so constituted, heard
argument in the matter of the re-
served questions and took the same
under consideration, but, before reach
ing a conclusion thereon, one of such
substituted judges resigned his posi-
ton as such judge and withdrew from
further connection with the case.
Thereupon, on motion of counsel for
the plaintiff, the same judge of the
Supreme Court requested and author
lied the remaining substituted Judge
and another member of the bar of the
Supreme Court to sit with him in the
determination of the said case. The
court so constituted heard argument
in the mater of the said reserved
questions and thereupon filed its de-
cision as hereinbefore set forth,-find-
ing that trust had been created in
the property devised to Irene by the
will of her father and that such trust
had terminated upon her marriage and
majority; and also that she had an
estate in fee simple in the property
devised to her by such will. q
"On appeal in the second case, the
Supreme Court, constituting the appli-
cable constitutional and statutory pro-
visions, ruled that it is at least doubt
full whether the Constitution (Const.
1894, Art. SO, Sec. ~ did not permit
the places of two disqualified men,
bers of the court to be filled with sub
stitutes at the same time. The sta
ture clearly did in terms at least. c.
l.. Sec 1170 That has been the prac-
tice acquiesced in for years under the
statute. The court was a de facto
court and the decisions of a de facto
court are not void and cannot be ques-
toned collaterally.' Brown v Brown
IS Haw. 213 This finding appears to
beg the question whether or not the
court so constituted was a court de
iure, as it relies upon the rule of au-
thority of de facto officers for its con-
clusion upholding the authority of
the court Under the rule, therefore,
above set forth, it has no binding eff
feet upon this court; and if it is con-
tended that in such finding the Ha-
waiian court intimated it's views of
the meaning of the constitutional pro-
vision in question, it canot be serious
| ly argued that the federal courts are
bound by such an intimation, which is
no more than a suggestion and which is
not relied on by the court making it.
Burgess v. Seligman, 1O7 U. S. 20
pa; Stanly County V. Coler, 100 U
S. 437, 444-5.
Under this analysis it does not ap
pear that the findings referred to OF
the Supreme Court are res judicata
and a bar upon the grounds insisted
on to the consideration of the ques'
lions involved, by this or any court
And it still stands that if the decision
in the first case was void, as found
above, les affirmance, if it was affirm
ed in the second case, which is extre
mely doubtful, gave it no validity
whatever. 4 s.
"The court is therefore brought tc
the consideration of the claims to the
fund in court for distribution under
the provisions of the will of John Ii
and, although not bound by the find
ings with the reasons given therefor
are entitled to its respectful and earn
est consideration.
Counsel for the Estate make the
point that long submission by the
minors to the decision in the first case
would estop them from contestinl
these proceedings, even if such deci
sion was void in the first case. lie
us see what their submission, if any
has amounted to. When the first cast
was brought in April 1894, George was
six and one-half years and Francis
six months old. The decision, which
consisted of answers to the reserved
questions filed by Judge Perry, wal
made in May 1897. AS already shown
there was no decree filed in this case
and the deed of July 2, 1897 made I'm
der it's authority was not recorded TO
four years and four months after
wards, and the second case wa
brought within fifteen months afte
such registration, in January 1903
George then being about fifteen ant
Francis about ten years old. The dc
cree dismissing this case on demur
rer was affirmed on appeal in Novem
Der 1903. On September .21st, 1905
notice in the case of United States '
John Ii Estate Limited, ct al, was Civ