US SUPREME COURT DECISIONS

The courts of Hawaii having, prior to the annexation, construed the statute of May 24, 1866, legitimatizing children born out of wedlock by the subsequent marriage of the parents as not applicable to the offspring of adulterous intercourse, and the organizing act of the Hawaii Territory having continued the laws of Hawaii not inconsistent with the Constitution or laws of the United States, this Court adopts the construction of the Hawaiian statute given by the courts of that country.

While in different jurisdictions statutes legitimatizing children born out of wedlock by the subsequent marriage of the parents have been differently construed as to the application thereof to the offspring of adulterous intercourse, in construing such a statute of a territory, this Court will lean towards the interpretation of the local court

The construction of a statute affixed thereto for many years before territory is acquired by the United States should be considered as written into the law itself. chanrobles.com-red

Page 210 U. S. 150

An ex parte and uncontested proceeding construing a statute and directing payment in accordance with such construction cannot be pleaded as res judicata in a subsequent contested proceeding.

17 Haw. 46 affirmed.

By the last will of Joshua R. Williams, duly admitted to probate by the proper court of the Hawaiian Islands on July 30, 1879, William R. Castle, the appellee, was appointed trustee to collect and manage the estate of said Williams. After the decease of Williams, Castle duly qualified and entered upon the performance of the trust. He was charged with the duty of paying the income of the estate to named beneficiaries during life, and, on the decease of any of such beneficiaries, the share was to be paid to the children, and the distribution of the principal of the estate was postponed to a remote period. One of the named beneficiaries was a son, John. He married, and his wife bore him a son, Othello. While John was living in lawful wedlock, another woman bore him two children -- Annie, born in 1879, and a son, Keoni, born in 1883. Some years subsequent to 1883, his first wife having died, John married the mother of his two illegitimate children. John died about 1891, leaving his second wife surviving him, as also the child Othello by the first wife and the two illegitimate children referred to. One of these, Annie, married one Kealoha, and in 1905, after she and her brother Keoni had reached their majority, they filed in the Circuit Court of the First Judicial Circuit, Territory of Hawaii, a bill against Castle for an accounting, in which substantially the facts above stated were set forth. It was also averred that, although, on an application by the trustee, he had, in 1891, been instructed by a justice of the court to make payment to the said Annie and Keoni of their shares, on the theory that they had been legitimated by the marriage of their parents, the trustee had ceased to make said payments, and denied that they were entitled to receive any portion of the income or to share in the principal of the estate. It was prayed that the trustee might be ordered to render an account and be compelled to make payment of the chanrobles.com-red

Page 210 U. S. 151

portion of the income to which it might appear the petitioners were entitled. A demurrer was filed to the bill, and the question whether the demurrer should be sustained was reserved to the supreme court of the territory, it being stated in the certificate that the following question of law was raised by the demurrer, upon which the court was in doubt, viz.:

"Whether or not said demurrer should be sustained or overruled, which involves the construction of § 2288, Revised Laws of Hawaii, and its application to the facts as alleged in the bill herein -- that is to say, were the petitioners made legitimate by the marriage of their parents subsequent to their birth, and thereby rendered capable of inheriting from their father, J. R. Williams, deceased?"

The supreme court held that the demurrer ought to be sustained, and, upon remittitur, the circuit court entered a decree sustaining the demurrer and dismissing the petition with costs. This decree having been affirmed by the supreme court of the territory, the case was brought here by appeal. 17 Haw. 415.