Gray v. Noholoa

The appellant herein appeals from the decree of the supreme court of the territory of Hawaii. The facts relating to the case are as follows:

Hikaalani Hobron Noholoa was a resident of the island of Molokai, territory of Hawaii, which is called the leper settlement, and was a leper, about seventy-five years of age, at the time of her death, on or about the 29th of June, 1906. Deceased left a husband, who was also a resident of the settlement and a leper, and a niece, the appellant, Kaimiola Nakookoo Gray, also residing on the island, and two grandnieces, being minors, residing in Honoluiu. She left a will written in the Hawaiian language, of which the following was taken as a translation by the courts below:

'I, the undersigned, a leper residing at Kalaupapa, island of Molokai, territory of Hawaii, do make this my last will for all property known belonging to me and appearing in my name situate at Kalaupapa aforesaid, with good will (or intention) do hereby bequeath the same as hereinafter described: One gray horse, one bay mare; one black mare; one frame wooden house and other houses owned by me, as well as all other property owned by me, to my husband David Noholoa, residing at Kalaupapa aforesaid, to him and to his heirs, administrators and executors forever. Renouncing all claims that my relatives may set up in law to this.'

The above will was duly admitted to probate in the circuit court of the second circuit of the territory on the 12th day of December, 1906, and, upon petition duly made, the court granted letters of administration with the will annexed to Enoch Johnson, who thereupon received such letters, and entered upon his duties as such administrator.

After the application on the part of the husband for the probate of the will of his wife, and after the filing of the same with the clerk of the circuit court, but before the granting of letters of administration to Enoch Johnson, as prayed for by the husband, a petition was filed with the same court by Kaimiola Nakookoo Gray, the appellant herein, and a niece of the deceased testatrix, in which petition it was averred that the will of the testatrix, which was offered for probate, did not dispose of any property other than which was within and at the leper settlement, and that the testatrix, at the time of her death, owned other property outside of the settlement, of the assessed value of several thousand dollars, and it was averred that there was no person who could lawfully demand settlement of the people who had possession of the property outside of the settlement, and therefore the petitioner asked for the appointment of some suitable person as administrator of the estate of which decedent died intestate, and that due notice might be given thereof.

Subsequently to the filing of this petition the probate court duly admitted the will as translated by the court to probate, and also denied the petition of the niece for letters of administration upon that portion of the land of deceased which she asserted was not included in the will. The translation of the will which she put in evidence in her proceeding was the same one that was made by the court in the proceeding to admit the will to probate.

Kaimiola Nakookoo Gray duly appealed from the order or decree of the probate court, refusing to grant letters of administration, as petitioned for, and the appeal was duly argued, without objection, in the supreme court of the territory, upon the same translation of the will, and the decree was affirmed.

A motion was then made for a rehearing of the case, and upon that motion, for the first time, ex parte affidavits were used on behalf of the appellant in regard to the translation of the will of testatrix. These affidavits asserted that the translation adopted, and most of it made, by the probate court, and adopted by the supreme court upon a hearing, without protest or question on her part, was not an accurate translation, and the following was asserted to be the true translation:

'I, the undersigned, a leper residing at Kalaupapa, island of Molokai, territory of Hawaii, make this my last testament concerning all chattels known as mine and in my possession, being in Kalaupapa aforementioned; with sane mind I bequeath all those said goods of mine described as follows, to wit,

'1 Creamed-colored horse,

'1 Bay mare,

'1 Black mare,

'1 Wooden house together with certain other houses, and all other chattels belonging to me, to my husband, David Noholoa, residing at said Kalaupapa and to his heirs and assigns forever. My heirs shall not have any right to claim these at law.

'In witness whereof I hereunto subscribe my name this 18th day of November, 1901.'

The court refused to accept such translation or to set aside or correct the translation already made and adopted by it, and thereupon denied the motion for a rehearing, Frear, Chief Justice, dissenting.

From the decree of affirmance, Kaimiola Nakookoo Gray has appeled to this court.

Messrs. David L. Withington, J. Alfred Magoon, and J. Lightfoot for appellant.

Messrs. William L. Stanley, Clarence H. Olson, and Henry Holmes for appellee.

Statement by Mr. Justice Peckham:

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: