NATIVE APPELLATE COURT

Dominion, Volume 1, Issue 304, 17 September 1908, Page 4

NATIVE APPELLATE COURT

YESTERDAY'S SITTING. • SEVERAL DECISIONS REVIEWED. The Native Appellate Court, consisting of Presiding Judgo Seth-Smith, Judge MacCormick, and Mr. Raurcti Mokonuirangi, assessor, held a sitting in the Sydney Street Schoolroom yesterday. REFUSAL TO CONFIRM A TRANSFER. The hearing of the appeal by Koro to vharo Pakara against a decision of the Native Land Court, dated June 13, 1908, refusing to confirm a transfer from him to' Allan Skennan, of l'almerston North, of a section known as Upper Aorangi No. 1, Section 36, and containing 30 acres, was concluded, judgment being reserved. Mr. J. J. M'Grath appeared on behalf of tho appellants. GRANT OF PROBATE OF A WILL. Judgment was delivered with respect to tho appeal of Karopa Waata against a decision of tho Nativo Land Court refusing probate of tho will of Rihi Huapango, deceased, of Hamua, on tho ground that tho evidence in support of tho duo execution was insufficient. Two witnesses, Waata Tohu,and Kopalia Rupa, had, the Court said, given evidence showing that the document propounded as a will was written by Waata Tohu at Rihi Huapango's dictation, and that tho deceased placed her mark' at' the foot in tho presence of a pakcha named A. M'Cormiek and ICotaha llupe, one of the witnesses. Tho mark was made by M'Cormiek while tho deceased held the top of the pen. M'Cormiek then signed his own name and helped Kotaha Rupe to sign hers by' writing her liaroo while she touched the pen. , Prior to deceased making her mark, the will was read to her by Waata Tohu in tho presence of M'Cormiek aiid Kotaha. ; •

The Court said it saw 110 reason to doubt the substantial truth of the evidence given by these witnesses.- They were in agreement'as to all material points, the only point in which they differed being as to the person who wrote the ivords ,"Ilihi Huapangi ko taku tohu tehei" by the side of deceased's mark. Their evidence was also materially corroborated by that of tho witness M'Cormick on the file. In its. opinion, the provisions of tho Wills Act had been complied with, and it must pronounco in favour of the will. As Waata Tohu, the executor named in .the will, had renounced probate, letters of administration with tho will annexed must be granted to some fit person. It would appoint liarcpa Waata as tho administrator. . Tho deposit of £15 was ordered to be returned to tho appellant, who was represented by Mr. Ayson. For tho respondents Mr. Otene Kuku Karaitiana ap-' peared. , ' QUESTION OF PARTITION. Tho decision of the Court with reference to the case of Taniora. Love and Inia Hoana, an appeal from the decision of the Native Land. Court on tho partition of Hutt 19, subdivision 7, was also given. ' The land was, the Court said, divided into two parcels by a straight lino running approximately east. and west, the north portion, containing; 14a. Or. Bp., being awarded to W'i Hapi Pakau and Paratene to Autoroa and Alii Moari, and tho southern' portion, containing 13a. lr. 19p., being awarded to tho respondents to tho appeal. / Wi Hapi Pakau and Parateno to Autoroa were dead, and their sister, Ani Moari, was presumed to be their successor.

From the evidenco of Taniora Lovo, it appeared, the Court' continued, that Wi Hapi lived for some years in a house in the southwestern corner of the land, and that' Parateno livod and died -in a houso in tho north-western corner; that Lovo drained tho southern portion, and cultivated tho wholo block for the benefit of tho three persons 110 represented; that part of t-lio southern portion was let- to a Chinese,''tho'rent being paid to Love 011 behalf of Ani Moari; and that nono of'tho respondents had occupied. ' In the opinion of tho' Court tho facts failed to show exclusive right to any portion of the land.' W f i Hapi's" residence 'in tho south' »as, it held, counterbalanced by the residenco or Parateno in tho north, and Ani Moari seemed to have lived chiefly with Parateno It was admitted by appellant that tho valuo of each parcel was substantially'the'saW.' The Court therefore held that tho decision of tho Native .'Land Court should not be disturbod. Out of the deposit of £15 paid by appellants as security,-it-awarded £7 10s. to tho respondents, who wero represented by Mr. J. J. M'Grath, and ordered the balanco to be refused to thir appellants, on whose behalf Mr. Ayson appeared. SUCCESSION ORDER VARIED. An appeal b'y Mohi'Nopera against tho decision of the Native Land Court given in February, 1908, determining the-successors to the half interest of. AVi Kateno in land devised by W'i Kateno to 0110 Wood, a European,, lvas tho subject of the next judgment. ' .

i Court said that on investigation c.f tho title of the land, of which picce'udw under consideration was part, Wi Kat-:-e mid many othors were found to be the owners, and by successive partitions ManawatuItututanaki, No. 2D, Section 7, was ultimately awarded to Wi Katene, who, in 1882, sold his interest to the AYellington-Mana-' watu Railway Company. In July, ISB3, another pieco of tho original block, called 2D, in which neither Arapere nor Wi Kateno had any interest, bccame vested in tho railway company by order in freehold tenure. Tho company also ;bought the interests of many other Native owners, ' including those of Arapere. By a deed executed in 1884 tho railway company conveycd . 2D, 12 to' Wi Katene and other Natiiro owners, who had previously owned the piece. Tho partition of 2D, Section 12®, was awarded t<> Wi Katene as sole owner ,and he sold it to \\ood, who reconveyed fifteen acres to Wi Kateno, who died without issue. The Nativo Land Court held that Araporo's noxt of 1- in wero entitled to succeed in preference to those of .Wi Katene,,on the ground that Wi Kateno was tlifi tamaiti whangi of Arapero, and that he had been, included in tho original title as such... ■ > . ■ 1' Appeared to tho Appellato Court that the Native title was wholly extinguished by the sale to tho railway company, and that Y i K ;l tpno must bo regarded as tho purchaser of his interest in 2D, No. 12. It had been stated that during tho negotiations with tho company somo arrangement for an exchange was made, but no evidence on the ] point had boon adduced. The appeal would therefore bo allowed, tho order made by tho Native Land Court in favour of To Arapero and Ropoama Arapero annulled, and an order of succession in favour of tho next of kin of Th Kateno granted. .The deposit was ordered to bo returned to appellants who wero represented by Mr. Ayson. For tho respondents Mr. Grace Roral appeared. NATIVE MARRIAGE LAWS. ■The next case in which-judgment,.was delivered was that in' which To Rina Hobani of Weraroa, appealed from a' decision of the Native Land Court appointing successors to Hoani Puihi (deceased) in respect of Horowhenua 11 B. sec. 36, and other lands. Tho facts wero that deceased had two children, Kingi and Ripcka, by a woman named Hiria AnVor'angi, and wliilo still living with her took another woman named Hariata Tinotahi also to live with him, and by her had tho appellant. Kingi and Ripelta now appeared as rtspondents. Tho Native Land Court ordered all thrco children to share in the succession, but at tho request of tho respondents, and apparently in the absonco of appellant, limited tho third interest awarded to her to herself fdr life with remainder to her issue, and failing issuo with remainder to respondents. Appellant now claimed tho award without limitation. Respondents assorted that deceased was legally married to their mother, and that Hariata was merely a concubine. They further alleged that tho deceased had not recognised tho appellant as having a right to succced or participate in his lands. Accord-

inR to Maori custom, appellant was, tlicy said, not entitled to a share of tho property. Tliey wore willing, however, for hor to receive tho limited interest awarded by tho Native Land Court. It was not donicd that appellant was a daughter of deceased, and that sho lived'with lwn until hor marriage.

As to the word the translation of which had been given as " concubine," the appellant replied that where a Maori lived with two women at tho same time the term in question applied to either of them. This view was supported by the Court assessor. The Court pointed out that it was not proved deceased was legally mr.rriod to Hiria. In his evidence in the Ilorowlienua case in IS9G deceased himself stated that lie first married Hiria and. subsequently married Hariata, a woman of high rank' in the Ngatipariri, his own liapu. It thus appeared that the. deceased did not consider Hariata's position with respect to tho relations with himself in any way inferior to that of Hi ria. Moreover, it had in no, way been conclusively shown that the deceased took any step indicating an intention to exclude appellant from any share in the land. The Court disagreed entirely with tho view of Maori custom propounded by the respondents. Whether deceased was legally married to Hiria or not it was of opinion that according to custom appellant was entitled to her proportionate share of tho estate in the same maimer as each of-the respondents. Tho order of the Native Land Court would, therefore, be varied by awarding to tho appellant one-third share of the estate without limitation. An ordor was also made that the deposit bo returned. QUESTION OF IDENTITY.

Judgment was then given with reference to the case of Hema Henaro, of Levin, and others, an appeal against tho decision of the Native Land Court appointing successors to Rangimairehau (deceased) in respect of Horowhenua 11 B sec. 18, and-other lands. Appellants claimed to be included ill the succession jointly with persons found to be so entitled. Tho case was ono of disputed whakapapa. Appellants asserted that they woro related to deceased through' his father Te Uirangi, and his mother, whose name they said was Whatiia. Tlioy alleged that To Uirangi was tho child of Hukenga and Rianui. Respondents denied that tho mother of deceased was Whatiia, but they were unable to give her name or whakapapa. Tlioy admitted that Te Uirangi was tho father of deceased, but said that tho parents of To ■Uirangi were Tahalii and Kuaka. On tho latter point tho contention of respondents was borne out by evidence given many years ago by deceased and his wife Makcrc. It was true that there was a discrepancy between ■.thorn if tile minutes wore correct, Makere giving Knaka as the wifo of Te Uirangi, whilo the deceased described her as his mother. Makere, however, gave Tahalii as the father of Te Uirangi. Tho Court thought that thero was little doubt that To Uirangi was -\tho child of Tahalii and Kuaka. With regard to the claim under Whatiia, it had not been referred to in: any evidence other than of appellant in sup-' port of the assertion tlip.t she was the mother of deceased. 'In his evidence in the Horowhenua case deceased referred to his mother' as belonging to Ngatirangi liapu and as having been captured by Ngatiawa, but did not give her name, and ho apparently baaed his claim in that case solely on his father. In tho various proceedings in connection with fcho Horowhenua Block, the Court found rcspondonts and deceased associated on several occasions, but it had not discovered any record of the deceased and the appellants having been associated. None of those circumstances, of course, conclusively showed that tho appellants' claim was unfounded, but after careful consideration tho Court felt it would not bo .justified in disturbing tho order of tho Native Land Court upon tho evidence before it. Costs totalling £5 wore oidored to be paid to J. M'Millan, of Ivoputa, and £2 was refunded to tho appellants.

DISPUTE AS TO OWNERSHIP,

Tlio Court also delivered judgment in the case of Kctewhia Maika Takaror?, of Otaki, an appeal against the decision of the Na.tive Land Court on tlio investigation of title to certain sections, ICS to 101. ' It had been found by tlio Native Land Court that appellant had of right no interest in any of the sections. That Court, however, suggested to the respondents that they should allow somo part of the land to be awarded to her, with the result that section 160 was awarded tb/hcr absolutely as sole owner, and section ■ 161 was awarded to her for life, with, remainder to Hon To lvaponga and Rawiri Rota a,iid To Tahiwi. Appellant claimed all four sections on tlio ground that-they were "occupied,■'cleared, and' cultivated by her father,. Maika Takarore, to whom she. said they were given by Kingi Te Ahoaho, a leading chief of N'raukawa, Appellant's position as a member of the N raukawa tribe was ambiguous inconsequence of her father, Maika, and her mother, Harata, having boon slaves. Maika, was by birth N'kahungunu; and Harata belonged to fvgaitcrangi, or some liapu who'resided in the neighbourhood of Tauranga.- Both were eaptured_ and enslaved by Kingi te Ahoaho. Harata lived for some timo with Kingi as his "'ifc, but subsequently married Maika. Although-' 1 Maika's introduction to N'raukawa. was in liaturo of a slave, lie appeared to have acquired a p prominent position • and to have been ■ recognised as .a leading member of the community. The Court wont on to say that upon examining minutes of previous proceedings in tho Nativo Land Court it found that interests were awarded to Harata or to other members of Maika's family in To Tokitoki, *\aihoanga,:Haruatai No. i, and Makura Tawliiti No. 6, and that tho existence of slavery was' not referred to on tlio investigation of titlo to any of those blocks. The recognition of Maika by N'raukawa placed appellant in a position with regard to other members of tho tribo which entitled her to claim a sha.ro in tho tribal, lands. There was no definite evidence to support the claim of any alleged gift of tlio' sections by Kingi to Maika, and tho Court could not attach much

importance to Maika's .share in the bushfelling. Tho emancipation of Maika from tho condition of slavery conld havo been only a. recent event when tho land was acquired. It was said to havo taken place after tho introduction of Christianity to tho district. There was a likelihood that Maika took part in tho clearing as a servant, or, at tho highest, as tho agent of Ki'ngi, and his so doing would not amount to an act of owner-, ship. The evidence Showed conclusively that appellant had never had exclusive occupation of tho four sections, and that her occupation had been chiefly,' if not entirely of sections 160 .and 161, and that oil thoso two sections it was of comparatively recent origin. The Court was of opinion that tho. decision of tho Nntivo Land" Court as to sections 15S and 159 ought not to bo disturbed. Section 100 had . been awarded to appellant. With regard to section 161, the; Only quostion to bo considered was whether ™ her of a life interest was a sufficient recognition of her occupation. l It would suggest the advisableness of effectiii" a compromise by the'transfer of section 161 to appellant and section 160 to respondents for an estate in [possession instead of in remainder. Decision would bo deferred to enable tho parties to confer.