Irons v Mailo, [1966] TTLawRp 21; 3 TTR 194 (21 June 1966)

3 TTR 194

SERHA IRONS,
Plaintiff

v.

PETRUS MAILO,
Defendant

Civil Action No. 227
Trial Division of the High Court
Truk District

June 21, 1966

Action to determine title to land in Moen Municipality, in which deceased owner orally willed his individual land to plaintiff, and later made second oral will in which third parties were named to succeed deceased in same land. The Trial Division of the High Court, Chief Justice E. P. Furber, held that in accordance with Trukese practice, deceased's directions during his last illness superseded any previous will of his land to plaintiff.

1. Truk Custom – Wills

Under Truk custom, deathbed will of family land supersedes any previous wills, written or otherwise.

2. Truk Custom – Wills

Under Truk custom, wills of family land do not have same authoritative force as valid will in United States, but require consent of family either before or after death.

3. Truk Custom – Wills

Under Truk custom, even though deceased's statement of his wishes regarding succession to family land over which he has control is clear, it may not control.

4. Truk Custom – Wills

Truk custom, whereby testator may make later change in will of family land without consent of person whom he has previously designated to receive land, applies also to will of testator's individual land.

5. Courts – Costs

Where plaintiff in good faith brings action to determine ownership of land in Truk, plaintiff will not be charged with additional costs which may be granted in cases where action is groundless, even though evidence to refute plaintiffs claim is strong. (T.T.C., Sec. 265)

FURBER, Chief Justice

FINDINGS OF FACT

1. Theodore Geierow, otherwise known as Karl Heinrich Theodor Gierow, and as Carl Girow, left two wills – an informal one dated July 1, 1908, and a more formal one bearing the stamp of the German Administration at Ponape dated October 1, 1908. Both of these left Ruwo Island to his adopted children Serha (sometimes spelt Sarah and sometimes Cera), Edward (sometimes spelt Eduard), and Michuo, otherwise known as Alfred (sometimes written Alfret), subject to a life estate in his widow Ema.

2. Partly as a result of efforts of the plaintiff Serha to protect her interests in the island in the face of persistent demands by a creditor of Edward, partly for debts incurred by Ema and others on Ruwo which Edward had assumed, Ruwo Island was divided between Serha, Michuo, and Edward, with the consent or acquiescence of all three of them and the assistance and approval of the Japanese Administration.

3. Michuo acquired Edward's one-third upon promising to pay the debts of Edward mentioned above and did pay them without the assistance of the plaintiff Serha except for her forbearance to press a claim against Edward and Michuo for a share in copra which they had cut on the island during the previous years without her participation.