20 Haw. 653 | Haw. | 1911
OPINION OF THE COURT BY
This is a statutory action to quiet title to certain lands situate on the Island of Kauai. The case was tried in the court below before a jury and resulted in a verdict for the defendants. The plaintiff brings- exceptions.
Certain facts were admitted, viz.: That one Isaac Kahilina died seized and possessed of the lands described in the plaintiff’s complaint; that said lands were conveyed by deed to said Kahilina on April 15, 1890, by one Mika, the same having been conveyed to him on the same day by Ana Kini, wife of Kahilina; and that plaintiff and defendants each claim an interest in said lands as heirs of the said Kahilina.
It was not disputed that Kahilina left no children, nor did the plaintiff dispute the alleged relationship^ of the defendants as a niece and grand-niece, respectively, of Kahilina, but the defendants disputed the claim of the plaintiff that she is the grand-daughter of a half-brother of Kahilina.
Plaintiff’s contention was, and there was evidence tending to support it, that Kahilina had a half-brother named Paulo, and that Paulo died leaving several children of whom the plaintiff’s mother was one. If that were so plaintiff would have inherited an interest in the lands.
The first point to be noticed is the contention made by the defendants that, assuming -the facts to be as claimed by the plaintiff, she has not shown any right to or interest in the lands in question. The contention now made is the same as that advanced by the defendants in the case of Uuku v. Kaio, ante, 567, namely, that the heirs of Paulo could not inherit, in view
Two of the plaintiff’s exceptions relate to the refusal of the trial judge to give certain instructions requested by plaintiff. But those exceptions cannot be considered for the'reason that the court’s charge ás a whole has not been made a part of the record. Torson v. Beckley, ante, 406, 409.
Exceptions 16 and 11 relate to the admission in evidence, over plaintiff’s objections, of portions of the record of the circuit court of the fifth circuit — in probate — at chambers, in the matter of the estate of Isaac II. Kahilina, deceased, consisting of the order of notice of the petition of the administrator for the allowance of his accounts and discharge, affidavit of publication thereof, and the decree entered in said cause, “that all and singular the estate and property, real, personal and mixed, of said Isaac IT. Kahilina be and the same hereby is awarded and distributed in equal parts and undivided moieties to Elizabeth Kaio and Rose Kaukaha Desha.”
Referring to' that evidence the trial judge instructed the jury a.s follows: “In bearing upon the truth' or falsity of the claim made by the plaintiff in this case, you may take into consideration the decree of heirship heretofore rendered by the court in probate proceedings as well as the notice published requesting all persons claiming as heirs of said Isaac Kahilina to appear before the court and submit their claim. If you believe, from the evidence, that the plaintiff was of age at the time of publication of such notice and the signing of such de
We deem it unnecessary to pass upon the remaining exceptions.
The verdict is set aside and a new trial ordered.