In re the Estate of Kekoa Kalamau

OPINION OP THE COURT BY COKE, C. J. This is an appeal from an order of tbe circuit court of tbe fourth judicial circuit distributing tbe estate of Kekoa Kalamau, deceased, to bis widow Paalani and to bis son John Kekoa Kalamau. Kalamau Sr. died at Papaaloa, Hawaii, leaving a small estate. Letters of administration were issued to Tbomas Pedro and upon tbe approval of tbe final accounts of the administrator tbe court after hearing evidence determined that Kala-mau Jr., as tbe son and only surviving heir of Kalamau Sr., was entitled to tbe property of tbe estate subject to tbe widow’s dower. Tbe claim of tbe son was contested by Mrs. Koakoa, a sister, and Henry Wessel and Herman Wessel, nephews of tbe deceased, who are tbe appellants herein. Tbe sole question involved is whether tbe circuit court properly found that Kalamau Jr. is tbe legitimate son of tbe deceased. Tbe evidence in respect to this issue is somewhat conflicting but tbe clear preponderance thereof sustains tbe finding of tbe court below. It appears from tbe record that Kalamau Jr. is tbe son of Kalii a formen wife of Kalamau, deceased. Tbe marriage of Kalii to Kalamau Sr. was established by reputation, declarations and conduct of tbe parties and through circumstances usually accompanying that relation. From tbe weight of tbe testimony it was made to appear that Kalamau Sr. and Kalii were- married at Laupaboeboe, Island of Hawaii, some nine or ten months prior to tbe birth of Kalamau Jr. Tbe rule is well settled that in civil cases other than actions for seduction marriage may be proved [83] by tbe fact that the parties have cohabited together as husband and wife and that such cohabitation has been attended with the reputation in the community in which the parties have resided and made their home that they are married. See Apong v. Marks, 1 Haw. 83; 2 Greenl. Ev. 14 ed. Sec. 462; Taylor v. Sweet, 22 Am. Dec. 156; Miller v. White, 80 Ill. 580; Bowers v. Van Winkle, 41 Ind. 432; Proctor v. Bigelow, 38 Mich. 282. J. B. Ferry for claimants-appellants. Fred Patterson (Bussell & Patterson on the brief) for J. K. Kalamau, Jr., appellee. This court held in Parke v. Parke, 25 Haw. 397, that a license is a prerequisite to a valid marriage in this Territory. But where in a proceeding of this nature the marriage is established by reputation it will be presumed in the absence of any showing that would repel such conclusions that the parties were legally competent to marry, that, they first procured a license and complied with all other requirements necessary to make valid the marriage contract. See 1 Bish. Mar. & Div. 6 ed. Sec. 457. The order and decision appealed from are affirmed.