Gray v. Noholoa/Opinion of the Court

The sole question in this case is whether property which belonged to testatrix in her lifetime, and was situated outside of the leper island, or settlement, at the time of her death, passed by her will.

The appellant asserts that the translation of the will, although made by one and adopted by both courts below without opposition, and offered on her part in this proceeding, both in the trial court and upon review, is nevertheless, inaccurate; that the translation which she submitted in her motion for a rehearing, as contained, in certain ex parte affidavits, is the more accurate of the two, and, if it were adopted, the original will in such case, as so translated, would not dispose of any property which belonged to the testatrix at the time of her death, situated outside of the leper settlement; and, as no executor was appointed in the will, the petition of the appellant for the appointment of an administrator with the will annexed as to all outside property of which the testatrix died intestate should, as she claims, have been granted, and to that end the order should be reversed.

What is the correct English transation of the original will in this case, written in the Hawaiian language, is a pure question of fact.

The record shows that Judge Kepoikai, judge of the probate branch of the circuit eourt, second circuit, himself translated, at least in part, the will now before us for construction. The record discloses no objection or opposition to such translation, or any criticism of its accuracy at that time. The supreme court, on appeal, used the same translation, without criticism or opposition, as had been used by the trial court, and, upon that translation, affirmed the decree. Mr. Justice Hartwell, in writing the opinion of the supreme court, said: 'The original of the will shows more clearly than does the evidently defective translation that the intention was to dispose of 'also all the other property known to be mine.' The decedent evidently knew well what her property at Kalaupapa was, and there is no reason to suppose that she did not know of the property in Honolulu.' [18 Haw. 266.] So that whether the translation adopted by the court below and the supreme court was defective or not, the view of the latter court was that a correct translation showed the intention of the testatrix to dispose of all her property, or, as the court said, 'also all the other property known to be mine.'

As the two courts below have determined the question of fact, we follow our usual course in such cases, and adopt the translation of the will which they have adopted.

The legal question then arising is, What did the testatrix mean by her will? Her intention is to be derived from her language, and we are of opinion that the lower court was correct in its construction as given to us.

A perusal of the will as translated and adopted by the courts below leaves us in no doubt that the testatrix's intention was to give to her husband, not only the property which she left situated at Kalaupapa, but also all other property owned by her, wherever it might be situated and whatever it might be. We do not think she intended to die intestate as to any portion of her property, or to limit her bounty to her husband to such property only as was situated at Kalaupapa.

The decree of the Supreme Court of the Territory is therefore affirmed.