Year: 1862

that II there was law regulating the descent OF
cestors estate his child Of his body the
cucn of all Others Leeiohoku has been proved to be
the heir of his fathers esatest they insist that there
was certain fired rule of the descent of property and
that the Court can not administer justice except
fixed rules The Court have hitherto examined this
question: and while they have given an opinion that
there was common law of inheritance, liable to be
modified defeated, but perfectly good until such an
event at the same time they expressed willingness
to hear testimony upon the subject of the descent of the
property, at period before there any written law


In the declaration of principles made by the Board
OF Commissioners to quiet land titles, they declare in
substance, that when the Islands conquered by
hamehameha l., he followed the example of his prede-
cessors and divided the lands among his warrior Chiefs
retaining portion in his own hands, to be cultivated
and managed by his immediate servants or attend
ants. Each principal chief divided his lands anew and
gave them inferior order of Chiefs by whom they
were subdivided again and again. All those persons
were considered to have rights in the lands in the
productions of them. These rights not clearly de-
ined but nevertheless universally acknowledged.
1t is expressly declared that the superior always had
the power pleasure dispossess his inferior but it
not considered just and right to do it without
and dispOssession did not often take place, except
the decease Of of the landlords when changes
ofeniimes numerous and the rights of heirs and
comparatively disregarded, for the purpose of IA
yorng a new class of persons.


Kanana testifes that ne is about eight years of
age, and that he acquainted with kaaimoku and
that he of the chief councillors of Kamehame
ha l. important matters relating to the Kingdom,
and subsequently of Kaahumanu, and that he next
in authority to kaahumanu. This during the
minority of Kamehameha Ill. He says, further, in
those days the property went to the children un-
derstand, the death of chief his children became
his heirs if he had children, it went to the heirs of
his brothers and sisters. - 1t was so in 1927 -
the year the original agreement executed. ' The
King wOuld refuse when the chiefs met and said,
that is the child. these the children of the de-
ceased, the King consented matter of course
He says further. &c that property divided the
testator wished it that the King would distribute it
according the wish of the testaOrs Dr. Judd, who
has been resident of these Islands since 1SS estfes
that there positive rule regulating the descent of
property but generally the party claiming to be heir
got it,


Judge Andrews testifes : There was something in
practice called common law, in relation to the disposal
of property, but that it was not Observed He SAYS
The children would divide the property, unless
wanted it. and went to the Konohki and asked for
it, He says, If the heir wanted it, and the chief did
object. he got it, He says sc do recollect an
instance where the whole of high chiefs property
went to his heir but the heir would get good portion
of it, Some other witnesses testified the sub
jec and regard them all confirming the position
which the Court have hitherto taken that the children
regarded the rghtu heirs, liable be defeat
ed by will, and by persons of superior authority and
power; but in the absence of these, the children
tered into possession and enjoyed all the rights of the
father. Heirs recognized by the agreement it
self; by the earliest written laws by the princi
Piles adopted by the Land Commission. After a thor
Ough examination of many persons perfectly acquainted
with the ancient usages of the country, in relation
those who vested with rights in the lands, the
Board refer in the rights Of heirs well Of
tenants.


The analogy of this system Of tenure very strik-
ing to that of the f-udal SYSTEM which has prevailed in
Europe the theory of which that all property in
land was originally in the King Chief who governed
the country; that it granted his followers for
services rendered and be rendered. but the superior
theoretically retained the title in the land itself There
the lord and vassal and similar in relation
each other to that which existed here The chiefs here
gave certain rights and privileges in lands which
granted to them by the King. chiefs of lower grades
and so in England the tenure not limited to the
paramount lord and vassa, but it extended to those
whom such yassal may have divided his own lands and
they became his vassals that he became mesne
lord between his vassals and the lord paramount
Heirship was provision in that code. The right of
prmogeniture derived from the martial policy of
the system 1t had like the system in every country,
provisions of inheritance peculiar ITSELF such for
example the total exclusion of females which is in
contrast to the Hawaiian Chancellor Kent says that
" The transmission of property by hereditary descent.
from the parent to his children, is the dictate of the
natural affections and DIR. Taylor holds it to be the
general direction of Providence


Immediately on the death of Kalaimoku, his son,
LeleiOhoku by his guardian, designated by his father
claimed the heirshp of the property recognized
such by the respondent during his life, which
period of more than twenty years. The heirshp
asserted and recognized and against those rights
claim or interference made So far q single in
aids in the proof of general usage this is very
strong from the fact that the respondent from time
to time paying the proportion Of Kalaimokus interest
for the and occupation of the Kings wharf accord
ing to the agreement to his son, who regarded
the heir By the evidence given, by the history of the


times and by the resolutions adopted by the Board of
Commissioners quiet land titles. it is very evident
that the rights of heirs disregarded to greater
less extent for the purposes of rendering aid to ia
vorites but when their inheritance regarded. and
frnifG Iuo IN
give title to property by adverse possession, it
would seem to be late day for Court, governed by
laws regulating descent of property to children should
far disregard law based upon principles of natural
justice, and defeat right which, in the darkest days
of the feual SYSTEM held sacred by the King, and
earnestly contended for by many of the chiefs of that
day.


The Court have already ruled that party cannot
contest the title under which he holds estate The
principle applies to the heir when the lessor dies
during the ter unless deprived of possession derived
from his lessor by paramount title In this it is
admitted that the respondent has enjoyed uninterrupted
possession Of the property excepting that portion of the
original lot taken for the enlargement of the Fort, in
lieu of which lot appropriated and confirmed by
the Land Commission. If the claim for rents and
profits of that portion of the Kings wharf of which he
had been ousted by superior force the Court would not
regard valid but by the force of the agreement
clearly and distinctly made before the Board Of the
Land Commission by virtue OF which, well as by the
original agreement, a valuable award was made, am





upon wNh the award made, the respondent should
account to the heir for No. with as much reason as
for No. l. Indeed far the rights of the heir
concerned it clear and distinct recognition Of his
rights, under the old agreement, and the additional
tcle to said agreement made with the representa-
tive of the heir HIMSELF and his mother who held life
estate in lot No. 2


1t is further claimed that Kalaimoku made will.
and that the King approved it, and that by doing his
property became vested in another than the child Of his
body


Kanaina states s'UpOn the death of Kalaimoku
I" the chiefs met my wife, who chiefess, being
" one, was present. but not taking part. They
s. consulted about the property of Kalaimoku. Il