Upon the facts of this case, as they appear from the evidence adduced, I am of the opinion that the application of David Kalakaua must be sustained. I think there can be no.reasonable doubt that Kaniu, a short time before her death, made and declared a. verbal will, by which she bequeathed all her separate property, both real and personal, to the petitioner, giving directions, at the same time, that her husband, Kinimaka, should hold and take charge of the prop-, erty for the heir until he should become of age.
As to the validity, in law, of such a verbal will, made and published according to the custom of the country, at any time antecedent to the enactment of the Organic Laws, in the year 1846,1 have no doubt. Chiefs and others, possessed of property, were in the habit, in those days, of passing their estates in that manner, and their verbal wills were recognized as binding and operative to all intents and purposes.
It may be objected, in the present case, that the petitioner has failed to show that the King and Premier approved the *85will of Kaniu, in. his favor, and that, therefore, it ought not to be held valid. But this objection, it seems to me, cannot be regarded as a sound one, because the King, I think, had not the power, under the circumstances, even if he had so intended, which does not seem clear, to annul the will of Kaniu, and substitute Kinimaka as her heir, in. the place of David Kalakaua, whom she had expressly nominated. Nothing but some strong legal objection could have justified the annulment of the will. It was made subsequently to the adoption of the old Constitution, which guaranteed protection alike for chiefs and common people, in their lives, liberty and property. The law which regulated the descent of lands to heirs, at the time of Kaniu’s death, was approved at Lahaina, on the 9th day of November, 1840. According to the provisions of that law, it does not appear to me that the express approval of the King and Premier was necessary to validate the will of Kaniu. The language is as follows: “ Be it furthermore enacted in relation to lands which Kamehameha 1st and Kamehameha 2d, gave to land agents, that after the publication of this law respecting taxation, whenever any of those land agents dies, his heir shall render an account to His Majesty the King of the lands which belonged to the deceased, and these shall return one. third of those lands to the King.” According to this rule all the lands, whether few or many, of every man who dies shall be divided. But if two months elapse after the death of any person, and the heir neither present himself before the King nor send a written notice, then the lands of the heir shall be divided equally. Hereafter the lands of all heirs shall be divided thus, when the King is not notified : “ From this time forth, the King and Premier must be informed of all bequests of lands and whatever relates to the heirs.” (See old Laws, pp. 41 and 48, Art. 14.) Nothing is said in this statute of the approval of a will, by the King and Premier, but, simply, that they should be duly notified, without delay. This provision was fully complied with in the present instance, by the official notification of the Premier by the Governor of Oahu, and the verbal report of Kinimaka.
. Again, it may be objected further, that it would not be safe, after the lapse of so great a length of time, to allow a nuncu*86pative will, the terms of which are not shown to have been reduced to writing within a reasonable time after the death of the testator, to be proved solely by the oral testimony of witnesses, whose recollection of particular facts, at so great a distance, may have become indistinct and unreliable ; and that the petitioner, or his relatives, ought to have taken steps to assert his alleged rights at an earlier day. To these objections, it is answered that, Governor Kekuanaoa has given some testimony to show that the terms of Kaniu’s will were reduced to writing, about the time she declared it verbally in his presence, and that the writing was then in the possession of Kinimaka; and that the petitioner, who only became of age about sixteen months ago, did, as soon as was convenient thereafter, commence proceedings for the recovery of the property bequeathed to him by Kaniu, which proceedings abated by the death of Kinimaka.
May 3d, 1858. Mr. Harris, for petitioner. Mr. Bates, for the heirs of Kinimaka.It appears to me that the position of the several witnesses vrho have testified, at the time when Kaniu’s death took place, and the means of knowledge which they consequently possessed, were such as to add greatly to the credibility of their testimony ; and, in the absense of any statute limiting the time within which a will may be proved, I think the Court would not be justified, notwithstanding the lapse of so long a period of time, in rejecting, even a verbal will, made in accordance with the law of the land as it then stood, the proof of which is so clear.
My judgment is that the verbal will of L. H. Kaniu, made in the year 1843, by which she bequeathed all her property to David Kalakaua, is duly proven, and that letters testamentary thereon, with copy of this judgment annexed, be issued to him, the said David Kalakaua.