2 Haw. 82 | Haw. | 1858
Upon the facts of this case, as they appear from the evidence adduced, I am of the opinion that the application of David Kalakaua must be sustained. I think there can be no.reasonable doubt that Kaniu, a short time before her death, made and declared a. verbal will, by which she bequeathed all her separate property, both real and personal, to the petitioner, giving directions, at the same time, that her husband, Kinimaka, should hold and take charge of the prop-, erty for the heir until he should become of age.
As to the validity, in law, of such a verbal will, made and published according to the custom of the country, at any time antecedent to the enactment of the Organic Laws, in the year 1846,1 have no doubt. Chiefs and others, possessed of property, were in the habit, in those days, of passing their estates in that manner, and their verbal wills were recognized as binding and operative to all intents and purposes.
It may be objected, in the present case, that the petitioner has failed to show that the King and Premier approved the
. Again, it may be objected further, that it would not be safe, after the lapse of so great a length of time, to allow a nuncu
It appears to me that the position of the several witnesses vrho have testified, at the time when Kaniu’s death took place, and the means of knowledge which they consequently possessed, were such as to add greatly to the credibility of their testimony ; and, in the absense of any statute limiting the time within which a will may be proved, I think the Court would not be justified, notwithstanding the lapse of so long a period of time, in rejecting, even a verbal will, made in accordance with the law of the land as it then stood, the proof of which is so clear.
My judgment is that the verbal will of L. H. Kaniu, made in the year 1843, by which she bequeathed all her property to David Kalakaua, is duly proven, and that letters testamentary thereon, with copy of this judgment annexed, be issued to him, the said David Kalakaua.