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In re Determination and Declaration of Heirs of Shee

December 1, 1964


Appeal from Circuit Court First Circuit, Hon. Frank A. McKinley, Judge.

Tsukiyama, C.J., Cassidy, Wirtz, Lewis, JJ., and Circuit Judge King, in place of Mizuha, J., Disqualified. Opinion of the Court by Circuit Judge King.


[48 Haw Page 193] This is another facet of a family dispute part of which has been before this court on another appeal. A very clear and complete statement of the situation is set forth in Chun Ming v. Ho, 45 Haw. 521, 371 P.2d 379 (1962). In the decision of that case, mention was made of a petition for determination of the heirs of Chang Shee, Equity

No. 5664 in the First Circuit Court. This court also ordered that "matters which concern the Chang Shee estate are to be held in abeyance until determination of her heirs."

Equity No. 5664 commenced on June 18, 1952, as a petition for determination of the heirs of Chang Shee who died intestate on August 11, 1927. The petitioners are Kam Chin Chun Ming, Kam Hon Ho, Kam Yee Ting, Kam Man Ho, Kam Kong Ho, and Young Tim Ho, who alleged that they and Kam Hee Ho are the only surviving heirs at law of their mother, Chang Shee. These persons are referred to as "the seven."

On October 2, 1952, Kam Moon Kam, Kam Yin Eng, Kam Mee Char, Kwan Heen Ho, Kam Hou Wong, Kam Lo Ho, Kam Yip Chock, Kam Sung Dott, Hoon Cheong Mock, and Kam Chung Bertleman filed an answer admitting that "the seven" are children of Chang Shee but alleging that they also are surviving children and heirs at law of said Chang Shee. These respondents are referred to as "the ten."

"The seven" admit to the same status another child, Kam Yau Ho, who died on April 21, 1930, single and without children. "The ten" include as children of Chang Shee, Kam Yau Ho and two more children, Wah Leong Ho, who died on June 6, 1936, single and without children, and Wah Teong Ho, who died on May 21, 1933, single and without children. Chang Shee's widowed husband, Ho Poi, died on May 29, 1941.

Hearings were held beginning January 9, 1959, and ending April 20, 1959, on which date the judge took the matter under advisement and announced that no decision would be rendered until this court had acted on the then pending appeal in Chun Ming v. Ho, supra. That case was decided on May 2, 1962. Thereafter, the judge heard further argument, received further evidence, again took

the case under advisement, and on July 31, 1962, filed his decision, followed by a decree on August 10, 1962, finding that the heirs at law of Chang Shee at the time of her death were the 20 children mentioned above. There was a motion for a new trial which was denied on December 5, 1962, after which "the seven" filed this appeal.

One would have supposed that it would be a relatively simple matter to prove whether or not the same woman gave birth to 20 children between 1892 and 1917. The difficulty is that until the death of Ho Poi, the admitted father of all 20 children, there had been no issue raised that any of these children were not also the natural children of Chang Shee, Ho Poi's only lawful wife. Contrariwise, there had been positive sworn statements by Ho Poi, Chang Shee, and three of "the seven" that all 20 children were the children of Ho Poi and Chang Shee. After Ho Poi's death and in the petition for probate of his will filed by Kam Hee Ho, one of "the seven," only "the seven" were named as his heirs at law and next of kin. On August 11, 1941, two of "the ten" entered their appearance in the probate proceedings and set forth the claim of "the ten" to be also children and heirs at law of Ho Poi. This gave rise to the dispute.

"The seven" admit that Ho Poi is the father of "the ten" but deny that Chang Shee is their mother and claim that another woman, Chun Shee, is their mother. This is buttressed by birth certificates, a record book kept by Ho Poi, and the testimony of individuals who said Ho Poi had children by the two women.

Chun Shee was a woman who accompanied Ho Poi and his wife to Hawaii in 1891 when she was about 10 years of age and who remained in the same household until her death on January 23, 1919. Her status is ambiguous when viewed in the light of Western concepts for it is suggested by "the seven" that she was Ho Poi's "second wife" and

the mother of 12 of his children ("the ten" plus 2 deceased children).

The law and its presumptions have been fully developed where the identity of the mother is known but the identity of the father is controverted. See Hopkins v. Chung Wa, 4 Haw. 650; Godfrey v. Rowland, 16 Haw. 377; Godfrey v. Rowland, 17 Haw. 577; McMillan v. Peters, 30 Haw. 574. The reverse situation seems to have presented itself to the courts very infrequently.

In Re Bennett's Estate, 135 Misc. 486, 238 N.Y.S. 723, was a probate case involving the right of an alleged daughter of the decedent to administration as against the alleged widow. The principal point of the case was the validity of a divorce decree obtained by the decedent from the petitioning widow, but the relationship of the daughter was also questioned. The judge of the surrogate's court said on this latter issue:

"The further attack made in the instant petition on the relationship of Mrs. Anderson to the decedent is not worthy of serious consideration. All of the evidence adduced demonstrates that the recognized relationship of parent and child existed between them, and under such circumstances the burden is upon the person denying the relationship to show by 'irrefragable proof' that it did not exist. * * *" (At page 737, underscoring added.)

In view of the judge's decision that the decree of divorce was void and that therefore petitioner as the lawful widow was entitled to administration, the remarks concerning the legitimacy of the alleged daughter were unnecessary. However, it is interesting to note that the alleged daughter of decedent was not the daughter of the widow ...

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