[1969-1982] NLR (B) 22

IN THE SUPREME COURT OF NAURU

Land Appeal No. 8 of 1970

ELIZABETH AMRAM

-v-

SAMMY HARRIS

3rd June, 1970.

Estate of deceased Nauruan - child of deceased brought up by deceased's mother - shared equally with deceased and her brothers and sisters in estate of deceased's mother as though child of deceased's mother - whether entitled to share in the part of deceased's estate inherited from her mother.

Appeal against a decision of the Nauru Lands Committee that the respondent, S.H., should have share of land comprised in his deceased mother's estate. S.H. was the son of M. However he was brought up by M.'s mother. When M's mother died, by family agreement S.H. received a share of her estate equal to the share received by each of M.'s mother's children, including M. herself. Subsequently, when some of M.'s brothers died intestate without issue, S.H. shared equally with M. and her other surviving brothers and sisters the part of the deceased brothers' estates which had been inherited from M.'s mother. When M. died, the Nauru Lands Committee decided that S.H. was entitled to share equally with M.'s other child EA. in the part of M.'s estate which M. had inherited from her mother. E.A. appealed on the ground that, as S.H. had already received a share of the estate of M.'s mother equal to M's share by being treated, in effect, as M's brother, he should not receive any part of M's share.

Held: (1) S.H. had been treated in all respects as though he were a member of M's generation, i.e. her brother and not her son, for the purpose of determining the beneficial succession to the lands comprised in M.'s mother's estate. It would be inconsistent with that fact if he were to be regarded as M.'s son for the purpose of determining the beneficial succession to the land comprised in M's estate which M. had received from her mother's estate.

(2) As apparently S.H. had not received any share of the estate of M.'s father, he was not precluded from sharing in the lands comprised in M.'s estate which M. had received from her father's estate.

I. Amram for the appellant
The respondent in person

Thompson C.J.:

The appeal relates to the interest in 28 portions of land possessed by the late Mabel Akiko. The details of the 28 portions are set out in the determination of the Nauru Lands Committee against which this appeal is brought; it was published in Gazette Notice No. 84 of 1970.

The appellant and the respondent are sister and brother respectively the children of Mabel.

The appellant's case is that, when her grandmother died, the respondent, who was then her only grandchild, was given a share of her property equal to the share received by Mabel herself and by each of the grandmother's other children; and that it is inequitable that he should now get a further share of the same property by receiving part of Mabel's share.

The respondent admits that he received a share of the grandmother's estate equal to that of Mabel and each of the grandmother's other children but asserts that this does not affect his right, upon Mabel's intestacy, to receive as one of her children a share of all her property, including that received from the grandmother.

Evidence was given by the appellant and by Mabel's third husband, Akiko, that she had told them that none of her property should pass to the respondent after her death because he had already received a share of her mother's property equal to her own. The respondent has admitted in his evidence that he did volunteer, while Mabel was alive, not to take any part of her property and to let Akiko have it. He is adamant that he did not offer to give up his rights in favour of the appellant who, he considered, had been taking too big a share of Mabel's phosphate royalties and not leaving enough for Akiko.

It would seem that the dying wish of a person expressed verbally is regarded by Nauruan custom as binding on the Nauru Lands Committee to order the distribution of that person's estate in the manner desired. It appears, however, that some degree of family unanimity that the wish was expressed is necessary and also that the wish has to be expressed when the person is near to death.

In this case there is no unanimity as to the precise nature of Mabel's wishes and it is doubtful whether it was a wish being expressed or a statement of what Mabel believed the legal position to be. I find, therefore, that there was no obligation on the Nauru Lands Committee to distribute Mabel's estate in accordance with her remarks about excluding the respondent, as related by the appellant and Akiko.

However, it is not disputed that Mabel's mother died intestate. Her property was distributed on her intestacy in accordance with what Mabel and her brothers and sisters agreed; that is, the respondent as her only grandchild, was treated as though he were a member of their generation and received a share equal to each of theirs. I have found that Mabel's property must now be distributed on the basis that she also died intestate. In respect of the property which she inherited from her mother, the respondent has already received his share as a member of his mother's generation. He has given evidence that there were originally more than five brothers and sisters of his mother but that several have died without leaving children. As he still has a share equal to that of each of his mother's generation, i.e. a one-seventh share, it is clear that he has continued to be treated in respect of his grandmother's property as though he were a member of his mother's generation. That being so, it would be quite wrong for him now to be able to take part of Mabel's share of that property on the basis that he is not a member of her generation but is a member of the next generation. I find, therefore, that he is not entitled to any share of the property which Mabel inherited from her mother.

The position is entirely different in respect of any property which became Mabel's property in any other way, e.g. by inheritance directly from her father. The respondent has never shared that property as a member of his mother's generation and is entitled now to share it equally with the appellant and Akiko (who is to have a life interest only).

The Director of Lands and Survey has given evidence based on his department's records that of all the portions listed in Gazette Notice No. 84 of 1970, only three came to Mabel from her father and that all the rest were her mother's property. The three portions which were the property of Mabel's father are Nibok Nos. 117 and 121, both named Arunugogo, and Nibok No. 180, named Anebobwija. The Director's evidence is corroborated by the fact that Mabel's share of each of these three portions was one sixth and not one seventh; the respondent clearly has not received a share of any of those portions.

Accordingly in respect of those three portions I uphold the determination of the Nauru Lands Committee that the respondent should have a share in them together with the appellant and Akiko (life time only interest). In respect of all the other portions the appeal must be allowed and the determination of the Nauru Lands Committee set aside. I order that each of those remaining portions are to be shared only by the appellant and Akiko, the latter having only a life interest.