4 Haw. 221 | Haw. | 1879
Opinion of a majority of the Court by
This is an action of ejectment for a piece of land in Koo-laupoko, Oahu. The jury rendered a verdict for the plaintiff, to which the defendant excepted and moved for judgment non obstante veredicto, on the ground that by the evidence of the plaintiff he is not within the degree of relationship which by the statutes of this country would entitle him to inherit.
The land was patented to Hinaaimalama, who died leaving an infant son Kupau and a widow Kalele; the son died soon after, and the estate vested in his mother Kalele. Makea, the plaintiff:’, claims .that his grandfather Kumaiahea was brother to Keawelaikini, the grandmother of Kalele, making him Ka-lele’s second cousin. The question reserved for the consideration of the Court'is whether such a relationship is capable of inheriting by the statute of descent in .this country.
The defendant contends that the statute terminates the inheritance of collaterals with the brothers and sisters of the parents and their direct descendants, and prohibits the inheritance from going any further back, and thus cuts off the -grand-uncles and grand-aunts and their descendants.
On account of the comparatively recent period at which regular government and rights of property in land have been established in this country, there is no necessity of inquiring into any ancient laws or customs touching the descent of property. Previous to the year 1846, it cannot be said that the common people had any rights of property in land by inheritance, since they were liable at all times to be dispossessed of their holdings at .the arbitrary will of their own chiefs; and even the superior classes -themselves, although they were accustomed when in expectation of death to designate the person whom they desired to be heir to their property, yet this will (kauoha),
u Whenever any person shall die intestate within this Kingdom, his property, both real and personal, shall descend to and be divided among his heirs as hereinafter prescribed;” and the second section, after setting forth the manner of descent to lineal descendants, proceeds to enact: “If the intestate shall leave no issue, his estate- shall descend one-half to his widow, and the other half to his father and mother as tenants i-n common; if he leave no widow, nor issue, the whole shall descend to his father and mother, or to either of them if only one be alive.”
“If he shall leave no issue nor father nor mother, his estate shall descend one-half to his widow, and the other half to his brothers and sisters, and to the children of any deceased brother or sister by right of representation; if he shall leave no issue nor father nor mother, and no brother or sister, his estate shall descend one-half to his widow, if any, and one-half to the brothers and sisters of his father and mother, and to their children by right of representation; and if he leave no widow, then such collateral heirs shall inherit the whole estate; provided, always, that if the estate come through either parent, the brothers and sisters of that parent shall be preferred to the others.”
“If the intestate shall have been married and leave no kin*225 dred but a widow, then she shall inherit all his estate; and if the intestate be a woman and leave no kindred but her husband, then he shall inherit all her estate.”
The law as subsequently re-enacted in the Civil Code in 1859, differs from this in no material degree. This law prescribes the line of descent. The first section states distinctly that the property is to be divided among his heirs as hereinafter prescribed, which is the same as to say that in the new order of things, there having been no heirship before, those persons enumerated in that statute should be heirs and none" other. When it says in the last paragraph, “if the intestate shall leave no kindred but a widow, she shall inherit all his estate,” it does not mean that she is to contend against every person claiming kinship, however remote, but the persons meant by “kindred” in that section- are those enumerated above and none other.
If the circumstances of the country at the-time- of the enactment of this statute be taken into consideration, it will be seen that there was a difficulty of tracing remote collateral relations. Only ten of the American States by their statutes, expressly carry the inheritance farther back than ours. In all these statutes, there-are-words similar to these: “If there be neither of these (relations), then to the- next of kin in equal degree;” “In cases not provided for by the statute, the inheritance descends according to the course of the- common law; ” and when it is considered that the compilers of the Civil Code had all these- statutes before them, it is-impossible to conceive that they omitted these provisions unintentionally.
Again, Section- 3458 of the Civil Code enacts, that, “If any illegitimate person shall die intestate without leaving lawful issue or a widow, his estate shall descend to-his mother, hut if he leaves a widow, she shall inherit one-half and his mother the other half, but if his mother be not living- and his widow is, then the widow shall take the whole; otherwise his estate shall escheat to the Hawaiian Government.”' Now, if there
The fact is, that the State had the right to limit the heir-ship as they saw fit, and they have limited it by express words, as far as regards collateral heirship, to> the- uncles and aunts of the deceased persons and their descendants by representation. Let us take an example which is plain enough. Suppose- a father possessing property died, leaving; an infant son heir to his property; that infant son is being: brought up in the- household of his grandfather and dies yet a child— natural reason might say that the grandfather shall be the heir to his- grandson, as he certainly would have been the-heir to his own son-, had it not been for the grandson. Now, could it be said for- a moment that in the face of this statute any Court could decree the-property to the grandfather, there being uncles and aunts-yet living, but by the statute the property of the .deceased boy would go to the brothers and sisters of the father first, because- he- would have acquired the property, and if there were none, then the-brothers-and sisters of his mother, -and the paternal grandfather would thus be-cut off entirely from the estate which his son had acquired. The force of this example is to show that no matter how
We are, therefore, of the opinion that the contention of the •defendant in this action is correct, and that the plaintiff is not within -the degree of relationship which would entitle him to inherit by .the statute, and therefore order that judgment be entered for the defendant, 'non obstante veredicto.