DECISION
MORROW, Chief Justice.Certain members of the Taufetee family of Nuuuli filed a petition for removal of Taufetee Akeimo as the matai of the family. There were 134 signatures on the petition. Akeimo requested a hearing pursuant to Sec. 934 of the Code. Hence this litigation. There were 160 signatures on the counter-petition asking for the retention of Akeimo as the Taufetee. Levu, one of the principal witnesses for the petitioners and the head of the family of which Akeimo is the talking chief, testified that all 160 signers on the counter-petition were members of the Taufetee family.
It is apparent to the court that there has been dissension and lack of harmony in the Taufetee family ever sinee Akeimo was awarded the name in 1940. Mulu, who is obviously the leader of the opposition to Akeimo, was a candidate for *540the name in the case of Akeimo v. Mulu, No. 6-1939 (Am. Samoa), decided on April 22, 1940. At the time of the decision Sec. 80 of the then Code provided that
“No person who shall, after the enactment of this regulation be convicted of and sentenced for murder, attempt to commit murder, rape, attempt to commit rape, burglary, robbery, larceny, embezzlement, false pretense, forgery, perjury, smuggling, selling intoxicating drink to natives, or infamous crime, or aiding and abetting therein, shall be eligible to hold any office or position of honor, trust, or profit under the Government of American Samoa, or be permitted to register a matai name...”
Mulu had been convicted in August 1930 of assaulting Viena of Nuuuli with a bush knife and maiming and lacerating her left hand contrary to Sec. 24 of the Codification of the Regulations and Orders for the Government of American Samoa. He was sent to jail for six months. In the above case of Akeimo v. Mulu this court decided that the assault with a bush knife resulting in the maiming and laceration of the hand of Viena constituted an infamous crime and that consequently Mulu, pursuant to the above Sec. 80, of the then Codification was not eligible to become the holder of the matai name Taufetee. Akeimo was awarded the name.
The evidence convinces the court that Mulu has refused to render service to Taufetee in accordance with Samoan customs and it is clear also that at various times he has induced certain other members of the family not to render service. In answer to the question “Have you cooperated with Taufetee in every way helping him?” Mulu answered “No.” Mulu was then asked the question “You have tried to keep the family split up?” To this question he answered “Yes.” We think he told the truth when he testified that he had not cooperated with Taufetee and he had tried to keep the family split up. Mulu is the blood son of a former holder of the name, Taufetee-Mulu.
*541The evidence showed that there was little foundation for the charges against Akeimo as set out in the petition seeking his removal. For instance one charge was that Akeimo buried his daughter in the grave of the daughter of one Rosa a member of the family, thereby desecrating the daughter’s grave. However, it appeared that the grave was not marked and that when it was discovered that Rosa’s daughter’s bones were in the grave, they were carefully gathered together in a tapa cloth and buried in the same grave as Akeimo’s daughter. We do not believe that there was any intended desecration of Rosa’s child’s grave. Merely an innocent mistake was made because the grave was not marked. There was also a claim that Akeimo had torn down some houses of Mulu’s branch of the family. If this were done, it was before Taufetee Akeimo became the Taufetee. Also if it did occur it was the result of a dispute between the Taufetee family and another family. Since, if it occurred at all, it was before Akeimo got the title, it is not a proper charge against him as the matai. It had nothing to do with his mataiship. There was also a charge that Akeimo’s branch of the family used breadfruit from trees planted by Mulu’s branch. However, it appeared that these trees were on the communal family land of the Taufetee family. It appeared that - during the war there was trouble between Mulu and Akeimo which resulted in Mulu being sent to Manua at the direction of the then District Judge Liufau. During the absence of Mulu the trouble within the Taufetee family decreased considerably. However, upon his return the old sores were reopened.
It is claimed by those seeking the removal of Akeimo that he is the father of an illegitimate child born to a Muuuli girl a few years ago. Most of the evidence in support of this claim was pure hearsay and should not, under the law, be considered by the court. There was some circumstantial evidence from which the court might infer that Akeimo *542could be the father of the child. Akeimo denied he was the father. We do not regard this charge as proved by a preponderance of the evidence. Whether true or not, the charge was not satisfactorily proved. We make no finding one way or .the other on it. The petitioners had the burden of proof. They did not sustain it.
It seems that on one or two occasions there have been fights between some members of Mulu’s branch of the family and some of Akeimo’s branch. The evidence does not convince us that Akeimo instigated these fights or that they were the result of any improper conduct on his part. We think that they are the natural result of Mulu’s keeping the old sores open and refusing to cooperate with Taufetee and his keeping the family split as he himself testified.
We do not regard Akeimo as entirely free from criticism, however, we think from the evidence that Mulu has attempted to entrap Akeimo with the result that Akeimo may have done some things for which he may be criticised. However, we do not believe from the evidence that Akeimo has been proved guilty of any such conduct as warrants his removal as the matai of the Taufetee family and therefore we shall deny the petition.
The court suggests to Mulu that he should abide by Samoan customs and render service to and cooperate with Taufetee and .that he should not discourage other members of the family from doing likewise. It suggests to Akeimo that he take steps at once to bring harmony into the affairs of the Taufetee family to the end that the family may live together in peace. Akeimo should be careful to conduct himself so that no one can point the finger of scorn at him or have any basis for charging him with immorality with a woman. A matai should be above reproach.
Petition denied.
*543Costs in the sum of $25.00 are hereby assessed against Mulu, the same to be paid within 30 days.