Machado v. Kualau

OPINION OP THE COURT BY PERRY, J. This is an action of ejectment. The facts are agreed upon by the parties and are as follows: That one Kualau died intestate, leaving surviving him a son, the defendant in this case, and one Kuanaulu, the illegitimate son of Kiahalehau, a daughter who died unmarried prior to' the death of Kualau Si’.; that Keone, another son of Kualau Sr., died unmarried and without issue prior to the death of his father; that Kualau Sr. was at the time of his death the owner of all of the land in controversy and that Kuanaulu conveyed all of his interest to the plaintiff. Upon these facts the trial court, jury having been waived, rendered a decision in favor of the plaintiff for an undivided one-half of the land. The defendant excepts. By the common law of England an- illegitimate was regarded as a child of no one and as incapable of inheriting from any one. 1 Blackstone, Commentaries, 459; 2 Kent, Commentaries, 212; 4 Kent, Commentaries, 413; Pratt v. Atwood, 108 Mass. 40; McDonald v. Railway, 144 Ind. 459. And it is [723] well settled that in the absence of any language clearly expressing the contrary the words “child,” “children” and “issue,” and similar words descriptive of classes who are to 'inherit, do not, when used in statutes of distribution, include illegitimate children. Hayden v. Barrett, 172 Mass. 472; Truelove v. Truelove, 86 N. E. 1018; McDonald v. Railway, supra. Our statute provides that “property shall be divided equally among the intestate’s children and the issue of any deceased child by right of representation.” R. L. Sec. 2509. In its ordinary meaning, the word “issue” in this in’ovision would refer to legitimate children only. Nor is there anything in our statutes to require or to justify any other construction. On the contrary sections 2511, 2287 and 2222 strengthen the view that the word is used in section 2509 in its ordinary acceptation. Section 2511 provides that “every illegitimate child shall be considered as an heir to his mother, and shall inherit her estate in whole or in part, as the case may be, in like manner as if he had been bom in lawful wedlock.” The enumeration of one excludes all others. The illegitimate is rendered by this section capable of inheriting from his mother, but not from any one else. Section 2287 specifically declares that illegitimates “shall not be entitled to inherit from their male parents without express bequest” and section 2222 provides that the child of a marriage, illegal because the husband had a former wife living at the time of contracting it, “shall be entitled to succeed in the same manner as legitimate children to all the real and personal estate of both párente in this Territory.” In the instance last mentioned the inheriting capacity is conferred only under the circumstances and to' the extent named. It is clear from all of these provisions that the legislature did not intend to alter the common law rule of incapacity any further than is specifically declared in the statutes. In the case at bar the mother of the illegitimate left no property. The inheritance is not from her, but from her father, the patentee. The statute has given to the illegitimate the ca [724] pacity to inherit from his mother, but not from his grandfather. J. IÁgMfoot for plaintiff. W. 0. Achi ((?; P. Kamauoha with him on the brief) for defendant. The exceptions are sustained and the judgment set aside. Upon the agreed facts judgment should, be entered for the defendant. It is so ordered.