Janre v Labuno [1973] TTLawRp 3; 6 TTR 133 (8 March 1973)

6 TTR 133

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Civil Action No. 388

CLEMENT JANRE

Plaintiff

v.

LEBAL LABUNO

Defendant

March 8, 1973

Action for determination of the alab for Monom and Kabinbat watos, Enijet Island, Mili Atoll. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that where disputed alab interests were in ninnin land, which descends vertically, not horizontally, and plaintiff was in the vertical line while defendant was in the horizontal line, plaintiff, acting for his older sister, was entitled to the alab interests.

1. Wills-Valid Wills

Properly executed, certified and approved will was valid.

2. Wills-Conflicting Wills-Particular Cases

Where plaintiff and defendant disputed alab rights to two watos, each offered a will by the same predecessor alab, and plaintiff's, will disposed of both watos whereas defendant's will, executed subsequent to plaintiff's, gave alab rights in one of the watos to defendant's wife but did not mention the other wato, defendant's claim regarding alab rights in the wato not mentioned in the will he offered must fail.

3. Wills-Conflicting Wills-Prevailing Will

If decedent made two wills, subsequent will would prevail.

4. Wills-Invalid Wills

Will made for decedent after his death, not signed by decedent and using language indicating he did not write it, was not decedent's will and did not revoke prior valid will.

5. Marshalls Land Law-"Ninnin" -Inheritance

Ninnin land is inherited vertically by the descending issue of the donor.

6. Marshalls Land Law-Lineage Ownership--Inheritance

Lineage land is inherited horizontally from the oldest to the youngest persons in the oldest to youngest bwij.

7. Marshalls Custom-"Alab"-Children

An alab's children are; under the custom, his nephews and nieces as well as his natural children.

8. Marshalls Land Law-,"Alab"-Children

An alab's children are in the direct line of inheritance for ninnin land, but not for lineage land.

9. Marshalls Land Law-"Ninnin"-Inheritance

Where disputed alab interests were in ninnin land, which descends vertically, not horizontally, and plaintiff was in the vertical line while defendant was in the horizontal line, plaintiff, acting for his older sister, was entitled to the alab interests.

TURNER, Associate Justice

This action was brought for determination of the alab for Monom and Kabinbat wato, Enijet Island, Mili Atoll. The master, Presiding District Court Judge Kabua Kabua, held hearings and recorded testimony of witnesses on Nalu Island, Mili Atoll, October 23, 1971, and on November 4, 1971, at Uliga, Majuro Atoll.

The parties appeared before the Court this day for hearing on the Master's report. The defendant represented his wife, Limin, who also was present and testified. Limin claims the title of alab for the land in question while defendant is the dri jerbal. He admittedly has not recognized plaintiff's sister or plaintiff's mother as alab for the land and has made no payment to them of the alab's share of copra sales.

As a result of argument of counsel, testimony of witnesses before the master and the master's findings, this Judgment is entered for the plaintiff in behalf of his sister, Neimej, whom he represented as the real party in interest.

Plaintiff clarified his complaint by stating his concern was in having his older sister declared alab to be succeeded by himself, even though his complaint sought a money judgment for the alab's share of copra sales from the land, admittedly withheld by the defendant.

[1] At the hearing before the master, the plaintiff introduced a copy of Baikan's will, executed, May 12, 1956, and certified by Carl Heine, the Clerk of Courts, March 21, 1962. The will was approved by Leroij Lanjen and was, therefore, valid. Lalik v. Elsen, 1 T.T.R. 134, 139.

The will named the two daughters of Baikan's older brother as his successor alabs. These women were Lijorimle and Limanin. Upon Baikan's death Limanin became alab until her death in 1967 and she was succeeded by Lijorimle, who died in 1969. The lands included in Baikan's will in behalf of Limanin and Lijorimle consisted of eleven wato on Enijet Island, two of which are named in the complaint as the lands in question, and apparently the only two defendants claim any alab interest in.

[2] At the hearing before this court defendant offered another Baikan will which named Limin alab of eight wato on Enijet Island. This will also was approved by Leroij lablab Lanjen and was dated December 7, 1964. This will said: "Limin is the one who is entitled to the alab's right on all lands mentioned above." The lands "mentioned above" included seven of the eleven wato listed in the 1956 will, including one of the two wato involved in this action. Because of this discrepancy, in listing Baikan's wato on Enijet Island, the defendant's claim to alab rights to Monom wato is without support. Kabinbat wato is listed in both the 1956 and 1964 wills. The wills, then, can only relate to Kabinbat because there is no dispute as to plaintiff's entitlement under the wills to Monom wato.

[3, 4] If, in fact, Baikan made a subsequent will, the last one would prevail. However, the master found, and the evidence submitted at the hearing leads us to conclude, Baikan did not make the will naming Limin alab but that it was made for him after his death. The will was not signed by Baikan and the language used indicates someone other than Baikan wrote the will. It is third person, not first person phraseology, i.e.,: "Purpose: All lands owned by Mr. Baikan on Enijet Island."

There was a sharp conflict in the testimony as to when Baikan died. Plaintiff says it was "three days" after he signed his will, May 12, 1956. The defendant said Baikan died in 1965. The memory of the parties is not adequate to give convincing testimony on the point.

The dispute between the parties need not depend exclusively on the effect of the wills, even though we conclude from the evidence that Baikan's second will was not, in fact, his will and did not revoke the earlier will. Marshallese custom relating to inheritance of ninnin land compels the conclusion the plaintiff and his sister, Neimej, are entitled to the alab rights.

[5-9] Ninnin land, unlike bwij or kabijukinen land, is inherited vertically by the descending issue of the donor, whereas lineage land is inherited horizontally from the oldest to the youngest persons in the oldest to youngest bwij. An alab's "children," i.e., under the custom his nephews and nieces as well as his own natural children, would not be in the direct line of inheritance for lineage land, but would be in the direct line for ninnin land.

If these wato had been kabijukinen wato, Baikan's sister would have been alab for them. She admittedly was not and Limin, defendant's wife, could not inherit ninnin land from her. In the present case Lomenbit was Baikan's predecessor alab. Baikan had no children of his own and the land descended, therefore, to the issue of his brother Lomenbit. They were the "new lineage" for inheritance of ninnin land. J. A. Tobin, Land Tenure Patterns, page 27; Jatios v. Levi, 1 T.T.R. 538 ; Limine v. Lainej, 1 T.T.R. 231.

Therefore, both under the custom of inheritance and by distribution under the 1956 will, we must hold plaintiff, acting for his older sister Neimej, is entitled to the alab interests. Since no claim has been made for money, none may be awarded. However, from and after this Judgment it is fully expected that defendant, as dri jerbal, shall give due recognition and payment to Neimej and Clement Janre as her successor, due an alab under the custom, for both wato involved in this case.

It is ordered, adjudged and decreed:-

That plaintiff and his sister Neimej are entitled to hold the alab interests for Monom and Kabinbat wato, Enijet Island, Mili Atoll, Marshall Islands, and that the only interests of the defendant is that of dri jerbal on the two wato.