Souwelian v Kadarina [1970] TTLawRp 4; 5 TTR 14 (29 January 1970)

Action to determine inheritance to land in Kitti Municipality, Ponape District. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that where neither a written instrument nor an attempted oral disposition of land were effective as wills, the deceased died intestate and pursuant to Ponape District Public Law 3-17-59, as between adopted children the adopted son takes ahead of any adopted daughter.

Where a witness' testimony was contradicted by so much of the testimony from both sides, it was not credible.

Where a will which cannot be found following the death of the testator is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it animo revocandi.

An attempted oral testamentary disposition, in the form of a nuncupative or oral will, cannot revoke a prior written instrument.

Under the Code, an oral testamentary gift is only effective when made in the presence of impending death. (T.T.C., Sec. 349)

The Code provision relating to oral testamentary gifts does not permit transfer of land by oral will unless authorized by local custom or written statute. (T.T.C., Sec. 349)

Testamentary transfer of land in Ponape District were governed from 1912 until 1957 by the provisions of the German title document.

Ponape District Order No.9-57 does not permit oral wills transferring land. (Ponape District Order No.9-57)

Under the Code provisions relating to oral testamentary gifts, an oral will was limited to disposition of personal property only unless authorized locally.

A person's possession of German deed after titleholder's death only gives rise to a presumption of ownership under Ponape District Order No. 3-61, and such evidence of ownership is rebuttable. (Ponape District Order No. 3-61)

Possession of German deed did not imply inheritance of the land contrary to Ponapean or Trust Territory law.

Pursuant to Ponape District Public Law 3-17-59, which specifies the order of inheritance, as between adopted children, the eldest son takes ahead of any adopted daughter.

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Assessor:	JUDGE ANTONIO E. RAIDONG
Interpreter:	JOANES EDMUND
Reporter:	SAM K. SASLAW
Counsel for Plaintiff:	EDWEL SANTOS
Counsel for Defendant:	YOSTER CARL
Counsel for Intervenor	YASUWO JOHNSON

1. Plaintiff, Ramon Souwelian, was adopted at the time of his birth, August 9, 1957, by Penido Souwelian, Nanmwarki·of Kitti Municipality.

2. Ehla Klemede, the intervenor, whose younger sister is plaintiff's mother, was adopted during Japanese times by Penido Souwelian before he became Nanmwarki of Kitti.

3. The land in question, known as Pahntakai, in Anpein Pah section of Kitti Municipality, was the subject of a writing in the nature of a will made by the Nanmwarki in 1964. It provided for distribution of one-half of the land to plaintiff, Roman, and to Defendant Kadarina, wife of the Nanmwarki, to be divided equally between them and the other one-half of the land to Adehla, the intervenor's eldest daughter.

4. The year following preparation of the "division of land" document, Nanmwarki sold to Antonia part of the land designated for Roman and Kadarina. The sale was by written instrument prepared by Danis Peter who also prepared the land division instrument. Peter, who was referred to by his title of Daok, left the land document with the Nanmwarki when he drafted it and saw it again in 1965 when he prepared the deed to Antonia. The Nanmwarki died July 28, 1968.

5. When the Nanmwarki died, the German deed to the land was in his possession, he having obtained its return from Ehla in 1967. Although Kadarina admitted a land division instrument or will had been prepared, she claimed it had been revoked when the Nanmwarki sold part of the land to Antonia. Kadarina did not account for the disappearance of the will other than to say it had been "revoked".

6. There was no evidence, other than the erroneous legal conclusion of the Nanmwarki's wife, that the will had been revoked by the Nanmwarki. The intervenor's principal witness asserted the Nanmwarki told him one week before he died that he would divide his land. Prior to that time, according to intervenor's witness, Nanmwarki had told the intervenor to get the German deed for the land after his death from his wife, Kadarina.

7. The Nanmwarki's wife, Kadarina, renounced all claim to the land in question in favor of the intervenor and asserted the Nanmwarki had instructed her to give the "land document" - the German deed - to Ehla, the intervenor.

8. Ehla produced the German Deed No. 187, for the land Pahntakai and asserted ownership by virtue of possession of the deed and also because she was Nanmwarki's eldest adopted child.

This case was the outgrowth of a family dispute over inheritance of land. The plaintiff, a minor represented in the action by his natural father, Okin Sarapio, claimed the land in question as joint inheritor under the Nanmwarki's will with Adehla, intervenor's eldest daughter, and with Kadarina, the widow of the decedent. Kadarina remarried and left Kitti after the Nanmwarki's death.

[1] By her disavowal of any interest in the land in question, Kadarina is entitled to have the action against her dismissed, but her testimony against plaintiff and in behalf of the intervenor demonstrated she was far from being a disinterested party. However, her testimony was contradicted by so much of the testimony from both plaintiff's and intervenor's sides, it was not credible. 58 Am. Jur., Witnesses, § 863.

The main thrust of defendant's testimony was that the plaintiff had not been adopted; that of the parties in interest only Ehla, the intervenor, had been adopted. The overwhelming weight of the evidence was to the contrary. Even the intervenor declined to say plaintiff had not been adopted, but only said that she didn't know. Because the Nanmwarki did not have any natural children of his own, the question of adoption is of particular importance because of the provisions of Ponape District Public Law 3- 17-59 governing inheritance of property.

In support of the argument plaintiff had not been adopted, the intervenor cited Hawley v. Tipin, Ponape Civil Action No. 342, not yet reported, in which it was held the evidence was not sufficient to show an adoption. The evidence in that case showed the alleged son, being related to the wife of the adopting father "rather than having been adopted ... grew up in the household."

The defendant, Kadarina, testified somewhat similarly that she took the plaintiff into the household at the time of his birth "to have the child as help in the family." She didn't explain what help an infant could give and the record shows the plaintiff was only eleven years old when the Nanmwarki died and his family was disbanded. Such tainted testimony from one in a position to know whether there was an adoption, compels the Court to give very little weight to all of her testimony.

The intervenor did not contradict the plaintiff's evidence by denying the adoption. Ehla merely said she did not know whether plaintiff was adopted. Thus his testimony remains virtually uncontested.

Because the court has held both the plaintiff and the intervenor were adopted, Ponape Public Law 3-17-59 is determinative of the result to be reached unless it is concluded the property in question was transferred by will. There are two alleged testamentary transfers involved, one to plaintiff and others, and the other to the intervenor.

[2] The evidence shows there was a written instrument purporting to divide the land into three parcels for the plaintiff, the defendant and the intervenor's daughter, Adehla, who was not made a party to the action. This instrument was not produced at the trial. That this instrument was in the Nanmwarki's possession prior to his death is clear. There even was testimony the Nanmwarki referred to the intended division of land expressed in the instrument only a week before his death. But what happened to the document before or after the Nanmwarki's death was not disclosed. We may not presume that it was in existence on the day of his death.

If the 1964 document, even though we know its content, is not effective because it was not produced in court, then we must determine whether the purported oral gift to Ehla of the land evidenced by German Deed No. 187, can be the basis for holding that the land in question was effectively transferred to her. There are several strong reasons why this determination may not be made.

The only support to the theory of a testamentary gift by delivery of the German deed is (1) Ehla obtained the deed from Kadarina after Nanmwarki's death; and (2) Ehla, Kadarina and Ehla's principal witness, Wasai, all said that the Nanmwarki told Ehla to get "her land document" from Kadarina after his death and that by "land document" he was referring to the German deed to Pahntakai.

[3,4] This self-serving testimony was challenged (in advance) by plaintiffs witnesses, but more importantly, this attempted oral testamentary disposition - in the form of a nuncupative or oral will - cannot revoke a prior written instrument and cannot be operative in this instance in any event. An oral testamentary gift under the Code is only effective when made in the presence of impending death. The common law rules have been partly codified in Section 349, Trust Territory Code. 57 Am. Jur., Wills, § 653.

[5, 6] The Code provision, adopted in 1966, does not permit transfer of land by oral will, unless authorized by local custom or written statute. Testamentary transfer of land in Ponape District has been governed since 1912 until 1957 by the provisions of the German title document. In Ladore v. Salpatierre, 1 TTR 18, this Court held that transfer of land by will was not effective without the consent of the Nanmwarki and the Governor (German) or Government (Japanese and/or American).

The history of land transfers in Ponape is set forth in Eneriko v. Marina, 1 TTR 334. Also see: Ladore v. Ladore, 1 TTR 21, Kehler v. Kehler, 1 TTR 398, and Liui v. Higgins, 2 TTR 218. In Eneriko this Court said at 1 TTR 337:-

[7] But Order No. 9-57 does not permit oral wills transferring land. See Liui, paragraphs 1, 2, 2 TTR at 220.

Clearly under custom and law until adoption of the 1966 Code provision, the purported transfer to Ehla would have been invalid. After 1966, an oral will was limited to disposition of personal property only unless authorized locally.

[9, 10] The purported oral will transferring the land in question to Ehla was ineffective under both Ponapean and Trust Territory custom and law. Ehla's possession of the German deed after the Nanmwarki's death only gave rise to a presumption of ownership under Ponape District Order No. 3-61. This "evidence" of ownership is, of course, rebuttable. Possession of the deed did not imply inheritance of the land contrary to Ponapean or Trust Territory law.

[11] It must be concluded that neither the written instrument of 1964 nor the attempted oral disposition to Ehla were effective as wills. The Nanmwarki therefore died intestate. The question of inheritance is settled by Ponape District Public Law 3-17-59 which specifies the order of inheritance. As between adopted children, the eldest son takes ahead of any adopted daughter.

The plaintiff was the Nanmwarki's only adopted son. Under the statute he inherits all of Pahntakai, except that portion sold to Antonia. This is more than the plaintiff claimed in his complaint where he alleged Adehla and Kadarina were entitled to share in the land.

Kadarina renounced any claim and is precluded from sharing in the land in question. Adehla was not made a party to this litigation and is therefore not prevented from asserting a claim against Roman. This judgment can only settle the rights as between themselves of plaintiff, defendant and intervenor and those who may claim under them.

1. That as between the parties and all those claiming under them the land. Pahntakai in Anpein Pah section, Kitti Municipality, Ponape District, save and except that portion sold pursuant to written instrument executed in 1965 by Penido Souwelian, Nanmwarki of Kitti, to Antonia, be and hereby is declared to be the sole and separate property of Roman Souwelian, the plaintiff herein.

2. The defendant Kadarina having disclaimed any interest in the above-described land, the complaint against her be and the same hereby is dismissed and plaintiff is denied any recovery thereon.

3. That the intervenor, Ehla Klemede, is denied her claim in intervention and she is denied any right, title and interest in the above-described land and shall forthwith cease and desist interference with plaintiff's quiet and peaceful enjoyment of said land.

4. This judgment shall not affect any rights-of-way there may be over said land.

Reports of the Trust Territory of the Pacific Islands

Souwelian v Kadarina [1970] TTLawRp 4; 5 TTR 14 (29 January 1970)