
    SUPREME COURT—IN BANCO.
    OCTOBER TERM—1880.
    
      Harris, G, J., Judd and Mg Gully, J.J.
    
    Kuaaka vs. Ainiu, k., and Manini, w.
    ON QUESTION RESERVED.
    The PLAINTIFF CLAIMED in his declaration a “life estate with right of present possession;” the evidence showed that the estate to which the plaintiff was entitled was during the joint lives of A. B. and C. D.;
    Held, that the declaration claiming a life estate, merely meant an estate for his own life, and a verdict for plaintiff could not be sustained on the evidence;
    
      Also, that it was too late to amend the declaration in the Appellate Court.
    
      Non-suit ordered.
   Opinion of tlie Court by

Me Cully, J.

Action of ejectment tried at the present term, with verdict for the plaintiff under instructions of the presiding Justice, with question reserved for this Court. The plaintiff’s declaration “claims a life- estate with right of present possession,” and be oilers in evidence first a conveyance of these premises from one Kahanus to Aseong- and Manini his wife, made September, 1873; second, a conveyance from- Aseong to the plaintiff macle April, 1879; third, a legal certificate of the divorce gi’anted Aseong from his wife Manini, obtained January, 1879, for the cause of her adultery.

J. M. Davidson for plaintiff.

E. Preston for defendant.

Honolulu, October 22, 1880.

And relies on Section 1831 of the Civil Code, “When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the husband shall hold her personal estate forever, and he shall hold her real estate so- long as they shall live,” etc.

The defendants’ counsel moved for a non-suit on the grounds, first, that there was no evidence to sustain the life estate alleged in the declaration; and second, that there is no evidence that Aseong is still alive. The plaintiff’s counsel contends that the claim of a life estate is supported by proof of a life estate in some one other than the plaintiff who claims it, to wit, in Aseong, and that he having been shown to- be living in April, 1879, the date of his deed, he shall be presumed to live till shown to be dead; that is, so presumed for a natural life time. But we are of opinion that the declaration can have but one meaning, and that when the plaintiff claims a life estate simply, it is an estate for his own life. If it is an estate for the life of his grantor it should be set forth, with a further allegation that the life is still in existence. The verdict therefore on this declaration is not good, for it is not true. It gives an estate for the life of Kuaaka, whereas Kuaaka holds, if at all, for the lives of Aseong and Manini.

The defendants’ counsel now asks to amend the declaration, but we think it is too late to amend in a matter of substance in the Appellate Court.

Non-suit ordered.  