In re Estate of Kamauoha

• Decision Date: 20 June 1922
• Docket Number: No. 1364.,1364.
• Citation: 26 Haw. 439
• Parties: IN THE MATTER OF THE ESTATE OF GEORGE P. KAMAUOHA, DECEASED.
• Court: Hawaii Supreme Court

26 Haw. 439

IN THE MATTER OF THE ESTATE OF GEORGE P. KAMAUOHA, DECEASED.

No. 1364.

Supreme Court of the Territory of Hawai‘i.

Argued May 1, 1922.

Decided June 20, 1922.

OPINION TEXT STARTS HEREERROR TO CIRCUIT JUDGE THIRD CIRCUIT. HON. J. W. THOMPSON, JUDGE.

Syllabus by the Court

A decree of adoption is not open to collateral attack on the ground that it does not contain a finding of the facts referred to in L. 1915, Act 47, Section 2.

A person adopted under and in conformity with the statutes of Hawaii inherits through his adoptive mother from her father, as fully as though he had been her natural child.

I. M. Stainback ( W. H. Beers with him on the brief) for plaintiffs in error.

N. W. Aluli ( H. G. Middleditch with him on the brief) for defendant in error.

PETERS, C. J., EDINGS AND PERRY, JJ.

OPINION OF THE COURT BY PERRY, J.

Upon a hearing of the petition of the administrator of the estate of one George P. Kamauoha, deceased intestate, for the allowance of his final accounts, for distribution and for discharge it appeared that the decedent left surviving him two daughters, Mrs. Crowell and Mrs. Waialeale. It also appeared that Sarah K. Kamakau, a third daughter, died shortly before the decedent leaving no natural-born children, but leaving an adopted son, Samuel M. Kamakau. The petition for adoption was filed and heard before a judge of the circuit court of the first judicial circuit in the year 1916. The petitioners were Benjamin L. Kamakau and the above-mentioned Sarah K. Kamakau. A written consent to the adoption was executed and filed by the natural parents of the minor. The two petitioners and the natural father were witnesses upon the hearing of the petition. The minutes of the court, evidently made immediately after the conclusion of the hearing, contain this entry: “The court grants the prayer of the petition for adoption and orders that a decree issue herein as prayed for, decreeing the adoption of the minor child, Samuel Manaiakalani Kamakau, by Benjamin L. Kamakau and Sarah K. Kamakau, his wife, with all rights of inheritance and all other rights incident to the relationship of parent and child.” No decree, however, was entered during the term of office of the judge who heard the petition. In 1920, upon motion duly made therefor, supported by affidavits, another judge of the circuit court of the first judicial circuit made and entered a decree, of which the following is a copy:

“The petition of Benjamin L. Kamakau and Sarah K. Kamakau, his wife, of Kona, Hawaii, Territory of Hawaii, praying that this court do decree the adoption of Samuel Manaiakalani Kamakau, a minor, having come regularly to be heard before the Honorable William L. Whitney, Judge of this Court, on August 7, 1916, and it appearing that no decree of adoption has been made and entered although the minutes of the court of August 7, 1916, show that the petition was granted, and good cause appearing:

It is hereby ordered, adjudged and decreed that the prayer of the said petitioners be and the same is hereby granted and the said Samuel Manaiakalani Kamakau, a minor, is hereby decreed to be adopted by Benjamin L. Kamakau and Sarah K. Kamakau, that hereafter they do maintain towards each other the reciprocal rights of parent and child with the full rights of inheritance from and through each other, the same as if he were petitioners' own child.

Dated July 30, 1920. This decree to be entered nunc pro tunc as of August 7, 1916.”

At the hearing of the administrator's petition for distribution and discharge claim was made on behalf of the minor thus adopted for a share of the estate of the decedent upon the theory that he stood in the same position with reference to inheritance from the decedent as a natural child of the decedent's daughter Sarah would stand. This was resisted on two grounds: first, that the minor was not validly adopted, and, second, that even if validly adopted he could not inherit from the decedent through his adoptive mother. The probate judge having sustained the claim of the minor the case comes to this court by writ of error.

The same contentions are presented in this court as were presented in the trial court. The attack upon the decree of adoption is made, not because it was entered nunc pro tunc (R. L. 1915, Sec. 2278, specifically authorizes in such a case the entry of a decree by a judge other than the one who heard the case), but solely upon the ground that “no finding of fact as required by the statute” is set forth in the decree. In this contention the reference is to the provision of section 2 of Act 47, L. 1915, under which the adoption proceedings were maintained, that “if the judge is satisfied of the ability of the petitioner to bring up and educate the child properly, having reference to the degree and condition of its parents and the fitness and propriety of such adoption, he shall make an order setting forth the facts” and declaring that, from that date, to all legal intents and purposes such child is the child of the petitioner and that its name is thereby changed. No claim is made that in the adoption proceedings there was want of jurisdiction of the subject-matter or of the parties and it would seem that no such claim can be successfully maintained. Nor is it claimed that the decree or the decision upon which it was based was obtained by fraud. This being so, the decree cannot be collaterally attacked. Van Fleet, Collateral Attack, Sec. 16, p. 14, and Sec. 17, p. 29; 23 Cyc. 1055, 1068. It may be that upon a direct attack made in the adoption proceedings themselves the decree should have been amended by adding a specific finding of the facts mentioned in the statute just quoted. However that may be, the failure to incorporate that finding cannot now avail the present contestants. The presumption is at this stage that the judge who heard the petition for adoption actually made the findings of fact which are referred to in section 2 of Act 47.

The more important and more difficult question is whether the adopted son of Sarah Kamakau inherited by right of representation the share of the estate of the decedent which his adoptive mother would have inherited if she had survived the decedent. At common law adoption was not known. We have not the benefit, therefore, of any precedents under the unwritten law or of the reasoning of judges in the past with reference to that branch of the law. The question now under consideration-a new one in this jurisdiction-must be considered and decided purely as one of statutory construction. It is almost needless to say that the statutes in other jurisdictions differ not only from the statutes of Hawaii but largely from each other. In so far as the history of Hawaii itself is concerned the earliest period covered by the reports of our supreme court was one with no statute at all on the subject. Next came a period, ending with 1915, when there were statutes but which statutes were wholly dissimilar from that of 1915 and its amendment of 1919, which are now in force. It is an often-repeated statement, as true today as it ever was, that when decisions are based upon statutes they must be examined and read each in the light of the statutes prevailing in its jurisdiction and that they cannot be regarded as authority for or against a particular proposition of law simply because the one conclusion or the other is there reached.

The statutes of Hawaii, under which the issue here involved must be determined, are the following:

“The word ‘issue,’ as used in this chapter, includes all the lawful lineal descendants of the ancestor.” Sec. 3245, R. L. 1915.

“General rules of descent. The property shall be divided equally among the intestate's children, and the issue of any deceased child by right of representation.” Ib., Sec. 3246.

On the subject of adoption: “If the judge is satisfied of the ability of the petitioner to bring up and educate the child properly, having reference to the degree and condition of its parents and the fitness and propriety of such adoption, he shall make an order setting forth the facts and declaring that, from that date, to all legal intents and purposes, such child is the child of the petitioner and that its name is thereby changed.” Sec. 2, Act. 47, L. 1915; and Sec. 6, Act 3, L. 1919.

“Effect of adoption. An adopted child, whether adopted by decree or judgment of a judge or court, or by an agreement of adoption legalized by a judge or court, or by an agreement of adoption duly acknowledged and recorded according to law, shall inherit estate undisposed of by will from its adopting parents the same as if it were the natural child of such adopting parents, and shall not inherit estate from its natural parents; the adopting parents of such child shall inherit estate undisposed of by will from such child the same as if such adopting parents had been its natural parents, and the natural parents of such child and their relatives shall not inherit estate from it; and for all other purposes an adopted child and its adopting parents shall sustain towards each other the legal relation of parents and child and shall have all the rights and be subject to all the duties of that relation the same as if such child were the natural child of such parents, and all such duties and rights as between such child and its natural parents shall cease from the time of the adoption.” Sec. 1, c. 83, L. 1905, Sec. 2994, R. L. 1915.

There are no other statutes in Hawaii on the subject.

In the first place, in passing it should be noted that in the decree of adoption of the minor, Samuel M. Kamakau, the order was that the prayer of the petitioners be granted and that the said minor “is hereby decreed to be adopted by Benjamin L. Kamakau” (the husband of Sarah) “and Sarah K. Kamakau, that hereafter they do maintain towards each other the reciprocal rights of parent and child with full rights of inheritance from and through each other, the same as if he were petitioners' own child”; and...