The master to whom the case was referred to take the proof and report his findings of fact and conclusions of law was of opinion that the widow's interest "was purely that of dower," and excluded the decree of the probate court. But he attached it to his report and the decree was considered by the courts, as we have indicated. The plaintiffs contend that thereby they have been prevented from introducing evidence to control the effect of the alleged decree. This is a matter of local practice that does not concern us. It was disposed of by the courts of the state. Decree affirmed. (238 U. S. 119) KAPIOLANI ESTATE, Limited. Appt., V. and E. M. Watson. JUDGMENT (713)-RES JUDICATA-LAND establishes the validity of the Saunders | does not concern the plaintiffs if the widow title beyond a doubt. Therefore we pass got a good title as against them. to the consideration of the earlier laws. The act of Congress of May 2, 1890, chap. 182, § 31, 26 Stat. at L. 81, 94, adopted and extended over the Indian Territory certain general laws of Arkansas "in force at the close of the session of the general assembly of that state of eighteen hundred and eighty-three, as published in 1884 in the volume known as Mansfield's Digest." etc. One of these was chapter 1, the provisions relating to administration, by § 3 of which, if the estate of the deceased does not exceed $300, the probate court is to make an order that the estate vest absolutely in the widow or children, as the case may be. The state court held that this section was extended over the Indian Territory, whether it was in force in Arkansas or not,-an erroneous principle, as decided in Adkins v. Arnold, 235 1. S. 417, 59 L. ed., 35 MARY H. ATCHERLEY, Lyle A. Dickey, Sup. Ct. Rep. 118; but if the section was in force in Arkansas the decision may be right in its result. Whether the section was in force is the main question in the case; and 1. The right of a minor ward upon comas this is, in effect, a question whether the ing of age to obtain relief in equity under act of Congress adopted it, it may, without who had, in fraud of the ward, presented a the Hawaiian laws, against his guardian, much stretching, be regarded as open to claim and obtained in his own name an review in this court, although if it were award by the Hawaiian board of land comone degree more remote, and concerned the missioners of a title in fee simple to the construction of an Arkansas act admitted ward's land, was not foreclosed by an afto be in force, it would be treated as in- firmance in the Federal Supreme Court of volving only a local law. See Shulthis v. a decree of the Hawaiian supreme court adMcDougal, 225 U. S. 561, 571, 56 L. ed. judging that the award in question could 1205, 1211, 32 Sup. Ct. Rep. 704; United only be attacked by a direct appeal by a States v. Pridgeon, 153 U. S. 48, 53, 54, 38 party who had presented his claims to the board, where the vitally important fact of L. ed. 631, 633, 634, 14 Sup. Ct. Rep. 746. guardianship was not incl id in the findThe Constitution of 1874 (art. 9, § 6)ings of fact certified to the Federal Supreme gives the occupation of the homestead of the deceased to his widow for life. The minor children take half during minority, but there were no minor children in this This section was held to be paramount, so far as it goes, in Winters v. Davis, 51 Ark. 335, 11 S. W. 420, But neither the Constitution of Arkansas nor the chapter of Mansfield's Digest (75) deal ing with the devolution of homesteads was put in force in the Indian Territory, so we are concerned only with § 3 of chapter 1 of the adopted laws. So far as it bears upon the present case we see no reason to doubt that it was in force, its displacement as to homesteads not being material here. If it was in force, it does not matter that the defendant purchased from the widow in 1900, before the decree of the probate court was made. There was nothing in the acts of Congress to prevent it, and no reason appears why the widow's title may not Court. [Ed. Note. For other cases, see Judgment, Cent. Ct, Dig. §§ 1252, 1253, 1275-1277, 1284; Dec. Dig. IAN COURTS FOLLOWING DECISION BE- 2. The Federal Supreme Court will ordinarily defer to the rulings of the local courts with respect to the validity under the Hawaiian laws of a judgment of the Hawaiian courts. [Ed. Note. For other cases, see Courts, Cent. 3. Notice of the suit and opportunity to defend it must be given to the warrantor of a title, or a judgment against the title available against him, if available at all, in a suit against his grantee will not be in favor of the successful assailant of the title. [Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 97, 98; Dec. Dig. § 88.] [No. 174.] have inured to her grantee, as held by Argued April 30, 1915. Decided June 14, the Supreme Court Commission; but that 1915. •For other cases see same topic & § NUMBER n Dec. & Am. Digs. 1907 to date. & Rep'r Indexes A PPEAL from the Supreme Court of the | in the same manner and under the same Territory of Hawaii to review a decree trust as Kinimaka. which reversed a decree of the Circuit Court of the First Judicial Circuit in that territory, enjoining the prosecution of an action of ejectment brought by one of the defendants, and requiring that defendants execute a conveyance to complainant. Reversed and remanded for further proceedings. See same case below, 21 Haw. 441. Messrs. Lyle A. Dickey, E. M. Watson, and Mrs. Mary H. Atcherley, in propria persona, for appellees. That subsequently (March 8, 1858) Kalakaua filed a petition for administration upon the estate of one Kaniu, deceased, under whom he claimed title to the lands, and for the appointment of a guardian ad litem for the minor children of Kinimaka. That upon the filing of such petition George E. Beckwith, administrator of the estate of Kinimaka, was appointed guardian ad litem of the minor children of Kinimaka, and notice was served on him as such administrator and guardian, and upon Pai to show cause why letters of administration might not issue to Kalakaua upon the estate of Kaniu, deceased. That upon proceedings being had a decree Mr. Justice McKenna delivered the opin- was rendered adjudging Kalakaua to be the ion of the court: devisee of Kaniu, and directing letters to be issued to him. That on June 19, 1858, Kalakaua filed a further petition alleging the same facts substantially which he had alleged in the Appeal to review a decree of the supreme court of Hawaii which reversed a decree of the circuit judge of the first judicial circuit, enjoining the prosecution of an action of ejectment brought by Mary H. At-petitions of December 29, 1856, and March cherley, one of the appellees, against appellant for the recovery of certain described lands, decreeing that appellant had the equitable title to the lands, and that appellees, including Dickey and Watson, who were made parties pending the suit, held the naked legal title thereto as tenants in common, one half thereof by Mary II. Atcherley and one quarter thereof by each of the other appellees, as trustees of appellant. The decree required that the appellees execute a conveyance of such title to appellant. The bill alleges that one David Kalakaua, under and through whom the appellant company (designated hereinafter as complainant) claims, on or about December 29, 1856, litigated his title with the following parties, under whom defendant Atcherley claims title, to wit: Kinimaka, Pai, his wife, and their children, in the supreme court of the Hawaiian Islands, in equity, alleging that Kinimaka held title to the lands in trust and as guardian of Kalakaua, and not otherwise, and praying that he, Kinimaka, be declared trustee of the lands for Kalakaua, and be decreed to convey the same in fee to Kalakaua; that summons was duly issued and served on Kinimaka, who, before filing answer, died, leaving a will devising the lands to his children, whom he left surviving him, and his widow, Pai; that these facts were suggested to the court, and it was prayed that the widow and children be made parties to the suit, and a guardian ad litem be appointed for the children, it being alleged that they became trustees of the property 35 S. C.-53 16, 1857, with the additional fact that one "David Kalakaua against Richard Armstrong, guardian of David Leleo, Kaniu, and Kinimaka, minor children of Kinimaka, deceased. The court did order, adjudge, and decree in this matter that Mr. Armstrong, the guardian of David Leleo, Kaniu, and Kinimaka, minor children of Kinimaka, deceased, do convey to David Kalakaua, the plaintiff in this case, the land named Onoulimaloo, on the island of Molokai, and the first Apana of land set forth in Royal Patent 1602 filed in this cause." That it did not appear either from the records of the court or from the registry of deeds in Honolulu that the decree of the court was in fact obeyed, but, it is alleged, that after the decree Kalakaua "ceased to be molested in any way by either the widow and heirs aforesaid of said Kinimaka, or by the said Armstrong in their behalf, and retained open, notorious, and indisputable possession and dealt with the said land in all ways as his own, and continued to do so until he disposed of said property." The bill here made "all the papers, pleadings, and exhibits of whatever kind in said equity proceedings" a part of it, and asked dollars for the government's rights in said. leave to refer to them as if actually incor- land, porated therein. Then came the following: "Therefore, by this Royal Patent Kameshows... that "And in this connection the plaintiff at-hameha III. taches hereto a copy of the original Land he has conveyed and granted in fee simple Commission award and royal patent [they to Kinimaka that land at Honolulu on the were not previously referred to in the bill] Island of Oahu with these boundaries and copies of the original record of evi- It is granted in fee simple to him, his dence given before the Land Commission in heirs and devisees.. support of said Land Commission award and royal patent, the same being referred to and made part of the evidence in said equity proceedings instituted in the years 1856 and 1857 above referred to, which said copies are made part of this bill." That the successors in title of Kalakaua (the conveyances being set out) had retained and had been in the same kind of possession and exercised the same disposition as he. That such possession in Kalakaua and his successors was known to the children of Kinimaka; that they attained their majority respectively in 1867, 1871, and 1877, and at no time did they or any of them assert any claim to the land or deny the rights of Kalakaua or his success ors, but acquiesced in his and their pos Bession. The lands in suit were part of the lands conveyed. Mary H. Atcherley, then being sole defendant, demurred to the bill on the ground that it did not set out a cause of action. By stipulation of the parties, in order to determine the question whether the decree of 1858 was res judicata, the circuit judge made a pro forma ruling sustaining the demurrer to the bill and dismissing it. The complainant appealed to the supreme court of the territory, it being stipulated that complainant should do so. The supreme court reversed the decree. 14 Haw. 651. In its opinion it recited the facts with great fullness, completed the allegations of the bill by the exhibits attached, and then disposed of the contentions as follows: The manner by which defendants ob- 1. The decree adjudging Kalakaua to be tained the title they assert was set out, and the owner of the land, and requiring it was alleged that owing to the failure of conveyance of it to be made to him by ArmArmstrong to obey the decree of the court strong as guardian of the children of Kiniand convey the interest of the children of maka, was not ambiguous, but it took cerKinamaka, as ordered by the court, com- tainty from the averments of the bill and plainant's required chain of title was in the record, and there could "be no doubt complete, and that the action in ejectment that it was the intention of the court to of Mary H. Atcherley, one of the defend-order the conveyance of the interests of the ants, sought "to take unconscionable advantage of the above-mentioned technical error in the chain of title." A cloud upon the title of complainant was asserted hence to follow, and that it would be inequitable to permit her to prosecute her action of ejectment, and that as naked trustee of the title she should be required to convey it to appellant. An injunction, temporary and permanent, was prayed, and that Mary H. Atcherley, the defendant, be declared trustee and be required to convey the property to complainant. Copies of the proceedings referred to in the bill were annexed to it as exhibits. Among these, we have seen, were the award of the Land Commission and the royal title. The latter recites that minors." 2. The minors were bound by the decree notwithstanding "they were not named as parties defendant in the suit." This was decided on the authority of Ilawaiian cases and the power of guardians over the estates of their wards established by them, and upon the general principle of collateral attacks upon judgments. And specifically replying to the contention that the decree was not binding because of "the lack of service and upon the merits," and that the court should refuse to enforce the decree, it was said: "It is not contended that the court must in all such cases re-examine the former proceedings, but merely that it may, in its discretion, do so. Assuming that to be so, we decline to retry the old case. The guardian appeared and contested the complainant's claim, presenting in opposition substantially the same views now sought to be urged by the respondent. The ward's interests were not permitted to go by default, but were fully defended by counsel. The "Whereas, Kinimaka has paid into the decree, while not carried out by the execu government treasury eighty-two and 50/100tion of a conveyance, was in fact acquiesced "Whereas the Board of Commissioners to Quiet Land Titles has awarded to Kinimaka by award No. 129 a freehold estate less than allodial in the premises mentioned below, and, in, as appears by the bill, by all concerned, and complainant and his successors in interest from that time continuously until about January, 1900, held open, notorious, and undisturbed possession of the land. Under the circumstances, and after a lapse of more than forty years, we do not think that the court should examine into the merits of the former proceedings, or refuse to enforce the decree for the reasons suggested." Upon the filing of the mandate of the supreme court in the court below, Mary H. Atcherley filed an answer in which she admitted many of the allegations of the bill, denied some-among others, the undisturbed possession of the land in Kalakaua and his successors, as alleged, and the inferences from it-asserted the validity of her title, and the staleness of complainant's demand, it having been "brought forty-three years, or more than four times the term of the statute of limitations, since the alleged date of the alleged decree ordering Richard Armstrong to give a conveyance." That to enforce a conveyance from her without giving her an opportunity to be heard upon the matters set forth in the bill would deprive her of property without due process of law, contrary to the 14th Amendment to the Constitution of the United States. By a supplemental answer she alleged the following, which we state narratively: Since the filing of the answer the complainant Kapiolani Estate, Limited, has parted with all of its estate in the land by a deed of a small portion to certain named parties and the balance, with covenants of warranty, to Lewers and Cooke, Limited, a Hawaiian corporation. June 29, 1906, that corporation brought suit in the court of land registration to register its title to the land conveyed. September 16, 1907, it was decreed that the corporation had a good title which was entitled to registration. The decree was reThe decree was reversed by the supreme court of the territory March 5, 1908, that court holding that the corporation had no title, legal or equitable, to the land. 18 Haw. 625. The case was remitted to the court of land registration for further proceedings, and that court dismissed the petition of the corporation. The latter appealed from the decision to the supreme court of the territory, which court modified the decree, and, on March 24, 1909, entered a final decree that the corporation had no title, legal or equitable, to the land. 19 Haw. 334. Upon appeal to this court the decision was affirmed. [222 U. S. 285, 56 L. ed. 202, 32 Sup. Ct. Rep. 94.] that "the proceedings in the court of land registration, the supreme court of Hawaii, and the Supreme Court of the United States were upon the merits of the case, and the cause of action so finally adjudicated was the same right and cause of action as that on which complainant in this case has founded its bill." There was a replication to the answer and an amendment to the amended bill, and it appears that Mary H. Atcherley conveyed an undivided half of the property to Lyle A. Dickey and Edward M. Watson, two of the defendants. They were made parties by consent and answered in the case, in effect repeating the answers of their grantor. It was decreed that (1) the allegations of the bill and replication of complainant were true. (2) The defendants and each of them were estopped from litigating against or in opposition to the claim of complainant. (3) The defendants held the legal title to the land as tenants in common, one half by Mary Atcherley and one fourth by each of the other defendants. (4) Such title and titles were held by the defendants respectively as trustees for complainant, and that each of them should be decreed to execute conveyance thereof to complainant, all and singular, the matters appertaining to the title having theretofore been litigated between the predecessors in title of the complainant and defendants respectively, and that the same were res judicata. (5) Defendants should be permanently enjoined from further prosecuting that certain action in ejectment then pending on the law side of the court, wherein Mary H. Atcherley was plaintiff and complainant was defendant. A conveyance was decreed to be made accordingly, and in case of default after thirty days the clerk of the court as its commissioner should make such deed. Further prosecution of the action in ejectment was enjoined. The decree was reversed by the supreme court of the territory. The opinion is somewhat difficult of condensation. It rapidly reviews the steps in the litigation exhibited in 14 Haw. 651; 18 Haw. 625; 19 Haw. 47 and 334; and 222 U. S. 285. Then this comment was made: "Notwithstanding the statement made in the Lewers & Cooke Case (19 Haw. 48) that there had been no reversal of the facts found by the court of land registration, the fact found by that court that Kinimaka 'was the natural guardian of the minor' was not included in the findings of fact certified up by this court on the appeal to The decree of the supreme court of Hawaii' the United States Supreme Court. And the is in full force and effect, and it is alleged fact that the guardianship relation existed, vitally important though it was, seems to have received scant consideration in that case. That Kinimaka was the testamentary guardian of Kalakaua's property seems to be beyond the range of dispute at this time. If the relation existed in fact a question as to the regularity of the appointment would not prevent the assertion of any rights the ward would otherwise have against the guardian. It is not essential, that a legal guardianship should exist; the doctrine (constructive fraud) applies wherever the relation subsists in fact.' 2 Pom. Eq. Jur. § 961. this was said: "If the decree in Kalakaua v. Pai and Armstrong was right it ought to be enforced. If the decision in the Lewers & Cooke Case was correct the present bill should be dismissed, but if it was wrong, in justice to the appellee, it ought not to be followed if it can be avoided. "Being of the opinion that this court was wrong in the conclusion reached in the Lewers & Cooke Case, and that the decree of 1858 was not 'erroneous in a fundamental principle,' and, for the reasons stated in the former opinion in the case at bar, should not be reopened, we should feel inclined to depart from the ruling made in the Lewers & Cooke Case were we not bound by it because of its having been aflirmed by the United States Supreme Court. "We are satisfied that this court fell into error in the Lewers & Cooke Case in taking the view that the equity suit before Chief Justice Allen constituted an attack on the award of the Land Commission, and that the decree in that suit amounted to a set- "It makes no difference that in making ting aside of the award. None of the prior that decision the Supreme Court followed decisions in this jurisdiction which were the opinion of this court upon a matter of cited in support of the view taken are au- local law (222 U. S. 294), and that we ! thority for the conclusion reached, as an now believe that that opinion was not well examination of them will show." [21 Haw. founded. If the former ruling is to be re445, 446.] versed, the reversal is to be made by that Hawaiian cases were reviewed and the court, and not this. The most that we can court said: "The question now presented is whether a minor on coming of age could obtain relief in equity against a guardian who had, in fraud of his ward, presented a claim and obtained in his own name an award from the Land Commission of title to the minor's land. This question was neither involved nor discussed in any of those cases. "The case of the guardian of a minor obtaining an award in his own name of land belonging to his ward is analogous to the case of a guardian who purchases land with money belonging to the ward, and, in violation of his fiduciary duty, intentional or otherwise, takes the title in his own name. In such a case it is well settled, equity, re- | garding the land as being the property of the ward, will declare and enforce a constructive trust in favor of the ward, and order the conveyance of the legal title. 3 Pom. Eq. Jur. §§ 1052, 1058." After further review of the case and consideration of the rights of Kalakaua, the action and duty of Kinimaka, the character and effect of the proceedings which he had instituted and which were instituted against him by Kalakaua, and, after his death, against his devisees, the court declared that certain principles resulted therefrom, and that "within these principles, then, the decree of 1858 was not erroneous, but right." The character of the awards of the Land Commission was considered and described and their proper relation to the questions and rights of the parties in the case; and do now is to respectfully point out wherein, in our judgment, the former opinion was wrong. This we have done, believing it was our duty to do it, and with this our duty in the premises ends." We have been at pains to recite the pleadings in the case, the steps in the litigation they detail, and the ruling and comments of the supreme court in order to bring the factors of judgment under review in proper connection and to estimate the constraint the court deemed that it was under to follow the decision of this court in the Lewers & Cooke Case, and whether the court was justified in its view of that case. The case at bar easily resolves itself into a few simple facts and principles which may be summarized from the pleadings and findings of fact. Kaniu, whose adopted son Kalakaua was, on the day of her death, by oral will and according to the custom of the country, appointed him her heir and left him all of her property. Kinimaka was Kalakaua's guardian, and, at a session of the Board of Land Commissioners, procured the land to be awarded to himself. Then followed litigation-commenced by Kalakaua, to declare Kinimaka his trustee of the title-which continued after the latter's death against his children, properly represented, and his widow, which resulted in the decree (November 2, 1858) establishing Kalakaua's title to the land. The decree was not complied with as directed, but was in effect obeyed, and Kalakaua retained possession of the land, and he and his successors have ever since con |