ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds
MR. JUSTICE HOLMES delivered the opinion of the court.
This case began as a proceeding by the United States for the taking of certain land. The land was condemned and the sum that was determined by the judgment to be the compensation due to the owners was paid into court. Supplementary proceedings then were had in the cause, according to local statutes, for the determination of the title to this fund as among different claimants who appeared and set up their claims. The plaintiff in error
claimed the whole by virtue of a deed from Irene Ii (Brown), daughter of John Ii, to its grantor, alleging that John Ii devised the land to Irene in fee and that her title in fee was established by judgments of the Supreme Courts of the Hawaiian Islands and of the Territory of Hawaii. The defendants in error, two of the three children of Irene, claim one-third each, subject to their mother's life-interest, on the ground that John Ii devised the land to Irene for life only with remainder to her children. The Circuit Court of Appeals sustained the latter claim. 119 C. C. A. 458; 201 Fed. Rep. 224.
It will be enough to give a few passages from the agreed but more or less impugned translation of the will out of its original Hawaiian; "All my property both real and personal shall descend to my heirs who are mentioned below as follows: First. Irene Haalou Ii, my own daughter is the first heir as follows: [describing certain lands, including that condemned] . . . I do hereby appoint J. Komoikehuehu, A. F. Judd, they both to be the executors and guardians of the person and property of my daughter the first devisee mentioned in this will. All the income from the lands that are leased and all other receipts from all the lands of my daughter they two alone shall have the sole care of it until she becomes of age or has children of her own; they shall be the executors during the lifetime of my daughter and her children in accordance with my wishes as expressed in this will. . . . And further, if my daughter should die having borne children, then the property shall descend to her children and if she should die without having had any children the property shall descend to her own mother, and if she should be dead then the property shall descend to my brother J. Komoikehuehu." It is obvious what hesitation an American court ought to feel in attempting to construe a Hawaiian will on the strength of this translation, and, still more, in disregarding the opinion of the court on the spot, familiar
with Hawaiian habits and not improbably with Hawaiian speech.
John Ii died in 1870. In 1894, the Hawaiian Islands then being an independent sovereignty, a bill was filed by Irene and her two children, the present defendants in error, by A. F. Judd as their next friend, and A. F. Judd, as executor, guardian of Irene, and trustee under the will, against Charles A. Brown, husband of Irene, alleging that Brown was in possession and squandering the estate, and praying among other things for a construction of the will and determination of the relative rights of the children and mother and for the reinstatement of Judd in possession as trustee. An amended complaint joined Sanford B. Dole as plaintiff, he having been appointed to take the place of Komoikehuehu deceased. The case dragged along and finally, the Chief Justice and one of the Justices being disqualified, the remaining Justice requested and authorized two members of the bar to sit with him, which they did. At the hearing they reserved questions of law to the Supreme Court of the Islands, two of which were: "1. Was a trust created in the property devised to Irene Ii by the will of her father John Ii? 5. Has Irene Ii Brown, a fee simple title in said property or is her estate one for life only?" The Supreme Court entertained the case and, as appears from the opinion, against the earnest contention of the counsel for the plaintiffs decided on May 11, 1897, that Irene, after she bore a child, became the owner in fee simple of the estate. This decision is relied upon as an adjudication concluding the present case. Brown v. Brown, 11 Hawaii, 47.
The chief objection that is urged to the conclusiveness of the decision is that after the opinion of the Supreme Court no further proceedings were taken in the case. This seems to be answered by the decision next mentioned, and by the analogy, if not by the letter of the statute then in force as to cases stated; that the case, the submission, and
the written decision, shall constitute the record. Civil Code of 1859, § 1142. It is said further that the Court was not legally constituted because two members of the bar were called in. The Constitution and statutes allowed the filling of a vacancy if a Justice was disqualified but it is said that the power extended only to a single one. We understand that the practice was the other way for years, and as the Supreme Court seems to have felt no difficulty it would be most undesirable to allow the question to be raised now. It is urged again that the children were not properly parties and were not separately represented although their interest was adverse to their mother's. The bill was brought by the trustee for instructions among other things and the cestuis que trust were made parties. It is true that they do not appear to have had separate counsel, but it appears from the decision of the court that the counsel represented and pressed their interest against that of their mother, and it seems to us not permissible to declare that the highest court of what was then a foreign jurisdiction did not know its own powers and was proceeding in a manner that the court of another country might pronounce wholly void. Finally it ...