CONCURRING OPINION OP
ROBERTSON, C. J.I agree with tbe conclusion that tbe judgment should be reversed and a new trial granted.
As to two of tbe three pieces of land in dispute, plaintiff and defendants deraign title from one Mailou. On July 10th, 1888, Mailou executed a deed wbicb was originally drafted as a conveyance to “Kapiioho, of Honolulu.” There was evidence tending to show that this Kapiioho was also known as “Lono,” “L. H.” and, it seems, as “I.” Kapiioho; and that be bad a son who lived at Naalebu, Kau, Island of Hawaii, who was variously known as “Kaiakoili,” and “Joseph” and “K. A.” Kapiioho. Kapiioho of Honolulu conveyed to Mele Kaulani, one of tbe defendants. Kapiioho of Naalebu died intestate without issue, and tbe plaintiff, bis widow, who has since remarried, claims an undivided one-half of tbe premises as an heir at law. Tbe deed of Mailou shows upon its face that tbe initials “K. A.” were interlined in three places before “Kapiioho” in a band-writing and ink different from that of tbe body of tbe deed except, as explained in tbe foregoing opinion, that tbe word “and,” tbe name “Maleka,” and tbe day of tbe month “10th” were also in a bandwriting and ink different from that used by tbe scrivener who drafted tbe deed. The name of the grant- *422or’s wife, Maleka, for the insertion of which a blank space had been left, it is reasonable to presume, was inserted before execution, and if the initials “K. A.” are in the same ink and handwriting, it would be prima facie evidence that they also were interlined before the deed was executed, and would be sufficient, in the absence of anything to the contrary, to establish the fact. If the initials “K. A.” were interlined before execution the title passed by the deed not to Kapiioho senior but to Kapiioho the son, and in that case the plaintiff’s claim would be good unless, as contended by the defendants, the father obtained title as against his son by adverse possession. The contention of the defendants is that it was not shown that the initials were interlined before execution, and their theory seems to be that it was an alteration made by Kapiioho senior after the deed had been delivered to him, it being his intention to thereby transfer the title to his son as a gift. Perhaps the circumstances that the description of the grantee was not changed from “Honolulu” to “Naalehu,” and that the undertaking on the part of the grantee to pay off a certain mortgage was left as originally upon “said Kapiioho” when it appears not to have been the intention of Kapiioho senior that his son was to assume that burden, tend to support the defendants’ theory. If the son’s initials were inserted by Kapiioho after delivery of the deed to him the act would not have had the effect of divesting himself of the title and passing it to his son, and the plaintiff would, therefore, have failed to show any title in herself. What has been said has reference only to what an examination of the deed itself discloses. There may be other facts in evidence which tend to support one theory or the other, but the'testimony relating to declarations said to have been made by Kapiioho senior to the effect that his son owned an interest in the land is as consistent with the theory that he had made an attempt to transfer the title to his son, which was ineffectual in law, as that the interlineation was made in the deed before its execution.
I think the trial court was right in holding that “there is no *423presumption that the material interlineation 'was inserted before execution.” There is a conflict of authority on the question whether an alteration in a deed is to be presumed to have been made before its execution, or afterwards, or whether there is any presumption at all. The weight of authority at the present time seems to favor the rule that as fraud cannot be presumed the presumption must be that a material alteration was made before execution of the instrument, though modern text-writers take the view that the sounder rule is that the question is one of pure fact uninfluenced by any presumption one way or the other. “The modern tendency is to * * * abandon the so-called presumption against fraud * * * and to raise no genuine presumption in that regard,” 4 Wigmore on Evidence, See. 2525; “This is a safer and better rule,” 2 Jones, Real Prop., Sec. 1367; “The better reasoning,” 1 R. C. L. p. 1043, §76; “The view best supported by reason, and the one to which the authorities seem tending,” 2 A. & E. Enc. Law, 274; “The view best supported by the authorities,” 2 Cyc. 243. In the case at bar there is no suggestion of fraud. There is no contention that the initials were inserted by or through the connivance of the son. The deed was placed on record by Kapiioho senior, and the evidence was uncontradicted that the son did not know of its existence until about twelve years after its execution. The reason for the rule that there is a presumption that alterations in deeds were made before execution — that fraud is not to he presumed; — having no application here, the rule itself should not be applied. The burden of proof was upon the plaintiff, and subject to the shifting duty to go forward with evidence, it was for her to show that her former husband acquired title under the deed in question. See Wigmore, supra. But in holding that there was “no proof” that the initials were interlined before the execution of the deed, or, as put in its decision overruling the motion for a new trial, “there was no evidence tending to show that the interlineation was made before execution,” the court below was in error. True, there was no direct testi*424mony as to when the interlineation was made, probably none was procurable, but there was some evidence, the deed itself at least, upon which a finding could and ought to have been based.
As to the other piece of land in dispute, plaintiff and defendants claim from one Keahilele who conveyed it to “I.” Kapiioho, of Kahehuna, Honolulu. I agree in the conclusion that the trial court committed no error in holding that the plaintiff failed to prove her claim of title to that parcel.