
    HENRY SMITH v. HAMAKUA MILL COMPANY, LIMITED.
    Exceptions from Circuit Court, First Circuit.
    Submitted September 28, 1900.
    Decided January 18, 1901.
    Frear, C.J., Galbraith and Perry, JJ.
    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.
    An adjudication of a question of heirship or relationship in >a proceeding in probate for a distribution of personal property is not binding in a subsequent action of ejectment with respect to real property as to one who did not appear as a party or claimant, though she appeared as a witness, in the probate proceedings.
   OPINION OF THE COURT BY

FREAR, C.J.

This is an action of ejectment for an undivided one-fourth of the ahupuaa of Koholalele, situated at Hamakua, Hawaii, and covered by Royal Patent 4527, L. O. A. 26B, to Kailakanoa, now called Kailikanoa. The plaintiff claimed title by conveyanee from Keala Koinla and Aalaioa and set np tbat those bad! title by descent from Kapebe, she by descent from Huakini, and be by descent from Kailikanoa, tbe awardee and patentee.

Tbe defendant pleaded in bar a. former judgment in substance that on tbe ,17th day of January, 1871, Chief Justice. Allen, of tbe Hawaiian Supreme Court, sitting in probate, decreed, after a bearing on tbe petition of P. Nahaolelua, administrator of tbe estate of Kailikanoa, for allowance of bis accounts and a declaration of the heirs of tbe estate, tbat tbe accounts be allowed and tbe administrator discharged, and tbat said P. Nahaolelua as half brother, and Hoomana as wife, were tbe heirs of Huakini, and therefore in effect tbat Kapebe was not an heir of Huakini. Tbe proceedings in tbe matter of tbe estate of Kailikanoa are made a part of the plea.

Tbe plaintiff replied denying, among other things, tbat P„ Nahaolelua was tbe duly appointed administrator of tbe estate of Kailikanoa, tbat notice of the bearing of his petition was given by publication or otherwise to Kapebe, tbat Kapebe was a party or claimant at tbe bearing, tbat any valid decree was made, or tbat Kapehe’s claim of heirship was disallowed, and alleging in substance, among other things, tbat Kailikanoa died in 1856, and tbat tbe real property then descended to Huakini, tbat Huakini was appointed administrator by tbe Supreme Court in 1857, and that after bis death P. Nahaolelua was appointed administrator in bis place by a Circuit Judge of tbe Island of Hawaii in 1862, tbat there was then no personal property of Kailikanoa to be administered upon and no unpaid debts, tbat tbe Circuit Judge bad no jurisdiction to make such appointment, both because there was no personal estate and because tbe Supreme Court bad taken jurisdiction, that there was no petition for a declaration of tbe heirs of tbe real estate, tbat there was no petition for a declaration of tbe heirs of Huakini, and tbat therefore tbe decree as to bis heirs was void because not responsive to tbe petition which was for a declaration of tbe heirs of Kailikanoa, tbat Kapebe was not a party to the proceedings, that she was a married woman, that her address was known to P. Nahaolelua, but that no personal service was made on her; that the published notice did not conform to the rules of court in that the last publication was less than two weeks previous to the day of hearing; that P. Nahaolelua was not,, but that Kapehe was of the blood of Kailikanoa, and the plaintiff claims that the Supreme Court had no jurisdiction over Kapehe, or to approve the accounts of P. Nahaolelua, as administrator, or over the real estate, or to declare the heirs of Kailikanoa or of Huakini.

The defendant filed a joinder to the effect that the plea was sufficient, notwithstanding the replication.

In brief, the defendant pleads a former adjudication adverse to the heirship of Kapehe through whom the plaintiff claims,, and the plaintiff replies in substance that there was no such; adjudication binding on Kapehe.

It will be unnecessary to consider all the questions raised in regard to the validity of the proceedings had in the matter of the estate of Kailikanoa.

The Probate Judge had no jurisdiction either to declare the' heirs of Kailikanoa in a dircet proceeding instituted for that purpose as distinguished from a proceeding for the distribution of the estate or a portion thereof (see as to this distinction Mossman v. Hawaiian Government, 10 Haw. 426, 432), or to make a distribution of the real estate.

Consequently, assuming that the petitioner was the duly appointed administrator of Kailikanoa’s estate, that there was in his hands personal estate of the decedent to be distributed, that there was a sufficient petition for its distribution and a sufficient notice of the hearing, that the Chief Justice had jurisdiction to act, that an adjudication of heirship as to the personal jDroperty was made and that such adjudication is binding as to its subject matter, the personal property, the question remains whether such adjudication of heirship in probate with respect to the personal property is binding upon the plaintiff in this action of ejectment with respect to the real property. ‘

Whether it would be binding if Kapehe, through whom the plaintiff claims, appeared as a party in the probate proceedings is a -question upon which there might be some difference of opinion (see Mossman v. Hawaiian Government, supra, 432), but that it wo-uld not be binding unless she did appear as a party in those proceedings is settled by the decision in that case, and in our opinion she did not so appear.

Let us assume that she could appear alone and be bound as •a party, though she was a married woman. The proceedings occurred before the passage of the Married Women’s Act. The record makes no mention of her husband, although it shows that Hanakaulani Holt, who was a party, and who claimed under the same relationship as that in which Kapehe stood, was associated with her husband in those proceedings.

The record does not show that Kapehe appeared as a party. The clerk’s minutes of December 31, 1870, the first day of the hearing show, “Petitioner is present with R. Gr. Davis. H. Thompson for Mrs. Holt. W. C. Jones for John A. Simmons.” There was no reference to Kapehe. When the accounts had been disposed of and the matter of heirship came up, according ¡to the minutes, counsel stated the claims of Simmons, Mrs. Holt and the petitioner, but did not state any claim of Kapehe. The •minutes of January 5, 1871, to which day the matter had been •continued after some testimony had been taken, show, “Hooanana (w.) appears and says — she claims through her husband.”

There is no reference whatever in the record of any appearance or claim of or on behalf of Kapehe.

True, she appeared as a witness, having been called as such by the petitioner, and recalled by counsel for Mrs. Holt, and testified as to matters of relationship. But she made no claim for herself. The fact that she was called as a witness by one who was claiming adversely to her interests tends to support the view •that she was present not as a party or claimant, but merely as a witness. Mere presence in court or acting as a witness would not constitute appearance as a party, so as to bind her with respect to matters not the direct subject of the particular proceedings even though she might have appeared as a party in interest or of record in such proceedings if she had wished to so appear. George v. Holt, 9 Haw. 49; Wright v. Andrews, 130 Mass. 149; Schroeder v. Lahrman, 26 Minn. 87. In Wright v. Andrews, the defendant was held not bound by a judgment in a former suit even in respect to the particular subject matter involved in the former suit, because he was not served with notice and did not appear as a party, though he was expressly named as a defendant, and his property was involved and he appeared as a witness. So here Kapehe might be held bound as to the particular property involved on the assumption that she had notice through publication, but she could not be held bound as to other property on the ground that she appeared as a witness, so long as she did not appear as a party or claimant.

It is true also, that the minutes show that the attorney, Mr. Thompson, said in his argument, “We claim the rightful heirs are Mrs. O. Holt and Kapehe.” This is not sufficient, at least, in view of the rest of the record, to show that Kapehe was a party, or that Mr. Thompson was acting as her attorney. Inasmuch as Mrs. Holt stood in the same relation as Kapehe to the •decedent, so that if one were heir the other would be also, as the undisputed evidence showed, the attorney could not but have mentioned the one, Kapehe, in urging the claim of the .other, Mrs. Holt, whose attorney he was. He was entered on the minutes as counsel for Mrs. Holt alone. He signed the notice of appeal, “Henry Thompson, attorney for H. Holt and her husband, Owen J. Holt,” and his motion for a jury trial was •signed, “Hanakaulani Holt and Owen J. Holt, by their attorney, Henry Thompson.” There is nothing to show that he stated the claim for Kapehe by her authority, or that she knew that he stated it at all.

The Chief Justice in his opinion speaks of “several persons claiming,” referring to all the claimants, but speaks of the “claimant,” not “claimants,” when referring to the argument of counsel for Simmons or Mrs. Holt, it does not clearly appear which. On appeal, Estate of Kailikanoa, 3 Haw. 461, the full court says: “Mrs. Holt is not the sole heir in any event, as= Kapehe’s claim is of like degree,” but this was apparent on the-evidence, and does not necessarily show that Kapehe presented or made any claim, and on the previous page, in the statement' of the case, which was prepared or revised by the Justice who-wrote the opinion, we find these significant words with reference-to the decree appealed from: “This decree was opposed by Mrs. Hanakaulani Holt and by John A. Simmons. From this decree, Mrs. Holt’s counsel, February 4th, filed a notice of appeal.”' Kapehe was not mentioned in this connection.

Lyle A. Dickey for plaintiff.

G. Brown for defendant.

The exceptions to the ruling of the Circuit Court sustaining-the plea in bar are sustained, the said ruling is reversed and the case remanded to the Circuit Court for further proceedings, conformable with the foregoing opinion.  