DISSENTING OPINION OP
WILDER. J.I dissent from the majority on the ground that on the petition for letters of administration the circuit judge sitting in probate and on appeal this court and the United States supreme court had no jurisdiction to construe the will to the effect that the ancestor of the plaintiffs had no title to the land in ques-ion, that is, that it was devised by the will to defendant Noholoa. That there was jurisdiction to construe the will so far as to ascertain whether the decedent died intestate as to any personal property requiring administration is conceded of course. The opinion of the majority proceeds upon the theory that if a court in determining an ultimate point of which it undoubtedly had jurisdiction adjudicated an intermediate point the adjudication of that intermediate point is a bar in subsequent proceedings between the same parties or privies although as to a different subject matter. That proposition has been approved by this court in Hawaiian Commercial Sugar Co. v. Wailuku Sugar Co., 14 Haw. 50. But it must be remembered that the court or judge adjudicating the intermediate point must have jurisdiction to decide that’ point, otherwise it" is no more a bar than if it or he had no jurisdiction to determine the ultimate point. The ultimate point here was whether the petition for administration should be granted or denied. The intermediate point determined was the construction of the will that it devised all the land of the testatrix wherever situate, in effect determining that defendant and not plaintiffs’ ancestor was entitled to the land involved in this action.
*677The general principles which are applicable are well stated in Kauhi v. Liaikulani, 3 Haw. 356, 357, where the court speaking through the present chief justice, said: “A decree of a court of competent jurisdiction, is generally conclusive in matters which (are) required to be adjudicated as a basis for the decree. In granting administration, the intestacy of the decedent requires to be determined and that fact when so determined should not afterwards be questioned by parties to the proceedings. But if the court, should go on to decide other matters not then requiring adjudication, as for instance who the heirs are, such adjudication would have no conclusive effect. In appointing a guardian, the court has only to find prima facie cause for such appointment. But that in any ex parte or preliminary proceedings in probate there is a final adjudication of heirship, kindred or legitimacy of birth or marriage, is more than can be admitted. Such questions are always open on hearings for final distribution. There is then no formal adjudication which is conclusive on the status of the appellee.” In that case in speaking of intestacy the court undoubtedly had reference to intestacy as to personal property and not as to land.
In Kailianu v. Lumai, 8 Haw. 508, which was an action of ejectment in which plaintiffs claimed to be the great granddaughters of the patentee, the trial court directed the jury to find for the defendants on the ground that on a petition for administration of the estate of the patentee the pedigree had been decided by the judge in probate adversely to plaintiffs’ claim in that he found that the intestate’s land should be equally divided between certain persons whom he decided to be the heirs. This court said (p. 510) : “This could not be done on a petition for letters of administration. It was a usurpation of jurisdiction that was common enough in the probate courts of fifteen or twenty years ago. Bndoubtedly such findings were generally in accord with the real facts, and for that rea*678son have been very generally acquiesced in. Rut neither by statute nor by precedents does such an authority exist. If the petition before the court was for the appointment of an administrator all that was coram judice was either the. appointment of one or the refusal to appoint one. We hold that the court had no authority, upon the petition for letters, to order the real estate partitioned among the heirs.” The court then goes on to distinguish that case from Keahi v. Bishop, 3 Haw. 546, relied on by the majority in the present ease. It points out that there the administrator had been appointed, had settled the debts and brought money into court to be distributed to the heirs of the intestate. As stated the probate court had authority to ascertain who the distributees were and having ascertained that it was held binding in other proceedings between the same parties as to land, but as the court in the Eailiamt, case very well said (p. 511) : “It is only binding when tire decree is a competent one, that is, made by a court having jurisdiction.” It should be remembered too that the writer of the opinion (Chief Justice Judd) was the one who dissented in the Keahi case, although subsequently he had repeatedly joined in decisions affirming the rule announced by the majority in that case.
In Proper v. Proper, 14 Haw. 596, 600, this court said: “In former years circuit judges not infrequently distributed estates on petitions and notices for appointment of administrators, and distributed real estate as well as personal estate on final distribution, but this court has not upheld the exercise of such jurisdiction.”
Tn Smith v. Hamakua Mill Co., 13 Haw. 245, it was held that the probate court did not have jurisdiction in 1871 to declare the heirs of a decedent in a proceeding instituted for that purpose as distinguished from a proceeding for the distribution of property, nor did it have jurisdiction to decree a distribution of real property.
*679In the Keahi case the ultimate point to be determined was who were the persons entitled to the money, and the intermediate point necessary to be adjudicated was their relationship to the decedent. Undoubtedly there was jurisdiction to determine both points. In this case the ultimate point was whether the petition for administration should be granted or denied. The intermediate point adjudicated was that the decedent had devised and bequeathed all of her personal as well as her real property to defendant. Whatever was decided as to the real property was not only unnecessary to dispose of the ultimate point, the right to administration, but was beyond the jurisdiction of the court in that proceeding to do. In my opinion the decision in the Keahi case does not control the one at bar.
It is with particular regret that I feel compelled to differ from the majority, in view of the fact that it was only on account of the land involved (there not being $5000 worth of personal property) that allowed this matter to be appealed to the United States supreme court. However, if this court made a mistake in deciding a matter concerning which it had no jurisdiction and allowed the United States supreme court to fall into the same error, now is the time to point it out and rectify the mistake as far as possible.
S. M. Ballou, for the petitioner. R. P. Quarles contra.