§ 1522. In the appointment of administrators upon the property of deceased persons, the following order of priority shall be observed: 1. The husband of a deceased wife.

2. The wife of a deceased husband.

3. The children being major.

4. The brothers and sisters of the deceased.

5. The cousins germain of the deceased.

6. Any bona fide creditor applying for administration.

Provided, however, that the judge may, for satisfactory cause, disregard the order of priority herein prescribed.

$1523. The judge shall make the necessary orders for, and prescribe the length of time during which executors and administrators shall give notice to creditors and debtors of the estate, and for the filing of inventories of the assets.

§ 1524. Executors and administrators shall in no case be liable to suit, until the expiration of six calendar months after probate, or the granting of letters of administration, except in cases of rejected claims, as provided in section 1526.

§ 1525. Immediately after the appointment of any executor or administrator of any estate, he shall advertise in such newspaper or newspapers as the court shall direct, for as long a time as the court may order, at least once a week for four weeks, a notice to all creditors of the deceased to present their claims, duly authenticated and with the proper vouchers, if any exist, even if the claim is secured by mortgage upon real estate, to him, either at his residence or place of business, within six months from the day of such publication. And if such claims be not presented within six months from the first publication of the notice, or within six months from the day they fall due, they shall be forever barred, and the executor or administrator shall not be authorized to pay them.

§ 1526. If any claim be rejected by the executor or administrator, a suit must be brought upon it against the executor or administrator, within two months after such rejection, or within two months after the same becomes due, or it will be forever barred.

§ 1527. It shall not be lawful to allow any claim that is barred by the statute of limitations of this Territory.

§ 1528. In all cases contemplated by the provisions of this chapter, the court or judge shall have power to issue all such letters rogatory, or commissions to take testimony, as may be necessary and proper in any particular case.

WHEREAS doubts have arisen as to the jurisdiction of the probate courts of this Territory to order the sale of real estate of deceased persons for the purpose of paying their debts; and it is expedient to remove such doubts; Therefore,

Be it enacted, etc.

§ 1529. That the probate courts of this Territory have had from the time of their establishment, and now have, and hereafter shall continue to have, jurisdiction to order and decree the sale of any real estate of deceased persons for the purpose of paying their debts, whensoever the personal estate of such deceased persons shall prove to be insufficient for the purpose.

NOTE TO CHAPTER 97.

SS 1497-1501 are S. L. 1878, ch. 15 C. L., p. 389. 241. $$ 1516-1518 are S. L. 1864, C. L., p. 394.

§§ 1502-1515 are C. L. §§ 1228§§ 1519-1523 are C. L. §§ 1242

1246. SS 1524-1527 are S. L. 1898, act 37. § 1528 is C. L. § 1248. § 1529 is S. L. 1876, ch. 57 C. L., p. 397.

Cases in Hawaiian Reports:

§ 1498 Asing v. Aiona, 6 Haw., 281.

1502 Haw. Com. Co. v. Waikapu, 8 Haw., 449; Day v. Day, 8 Haw., 715.

1504 Byrne v. Allen, 10 Haw., 668.

1516 Est. Bishop, 5 Haw., 289; Est. Brenig, 7 Haw., 642; Est. Banning, 9 Haw., 254; Est. Akahi, 9 Haw., 610.

1519 Est. Engelhardt, 7 Haw., 264.

1525-1526 Larsen v. Waterhouse, 7 Haw., 399; Emele v. Williams, 10 Haw., 123; Poor v. Smith, 10 Haw., 467; Defries v. Cartwright, 10 Haw., 249. 1529 Kapena v. Kaleleonalani, 6 Haw., 582.

CHAPTER 98.

SUITS BY AND AGAINST THE GOVERNMENT OF HAWAII.

§ 1530. The supreme court shall have exclusive jurisdiction to hear and determine the following matters, and shall determine all questions of fact involved without the intervention of a jury:

First. All claims against the government founded upon any statute of the Territory, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government, and all claims which may be referred to it by either house of the legislature: Provided, however, That no suit shall be maintained, nor shall any process issue against the government, based on any contract or any act of any government officer which such officer is not authorized to make or do by the laws of this Republic, nor upon any other cause of action than as herein set forth.

Second. All set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the government against any person making claim against the government under the provisions of this act.

§ 1531. Upon the trial of any cause in which any set-off, counterclaim, claim for damages, or other demand, is set up on the part of the government against any person making claim against the government in said court, the court shall hear and determine such claim or demand both for and against the government and claimant; and if upon the whole case it finds that the claimant is indebted to the government, it shall render judgment to that effect, and such judgment shall be final.

§ 1532. No person shall file or prosecute as aforesaid any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the Government.

§ 1533. Aliens who are citizens or subjects of any government which accords to citizens of this Territory the right to prosecute claims against such government in its courts shall have the privilege of prosecuting claims against this government as aforesaid.

§ 1534. Every claim against this government, cognizable as aforesaid, shall be forever barred unless the petition setting forth a statement thereof is filed in the court, or transmitted to it by the secretary of the senate or the clerk of the house of representatives, as provided by law, within two years after the claim first accrues: Provided, That the claims of persons under legal disability shall not be barred if the

petition be filed in the court or transmitted, as aforesaid, within one year after the disability has ceased.

§ 1535. The claimant shall, in ali cases, fully set forth in his petition the claim, the action thereon in the legislature, or by any of the departments, if such action has been had; what persons are owners thereof or interested therein, when and upon what consideration such persons became so interested; that no assignment or transfer of said claim, or of any part thereof or interest therein, has been made, except as stated in the petition; that said claimant is justly entitled to the amount therein claimed from this government, after allowing all just credits and offsets; that the claimant, and, where the claim has been assigned, the original and every prior owner thereof, if a citizen, has at all times borne true allegiance to this government, and, whether a citizen or not, has not in any way voluntarily aided, abetted, or given encouragement to rebellion against this government, and that he believes the facts as stated in the said petition to be true. And the said petition shall be verified by the affidavit of the claimant, his agent or attorney.

§ 1536. Any person who corruptly practices or attempts to practice any fraud against this government in the proof, statement, establishment, or allowance of any claim, or of any part of any claim, against this government, shall ipso facto forfeit the same to this government; and it shall be the duty of said court in such cases to find specifically that such fraud was practiced or attempted to be practiced, and thereupon to give judgment that such claim is forfeited to this government, and that the claimant be forever barred from prosecuting the same.

§ 1537. No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the court, unless upon a contract expressly stipulating for the payment of interest.

§ 1538. The judgments of the supreme court in all matters brought before it under the provisions of this act shall be final.

§ 1539. No prosecution, indictment, action, or suit shall be maintained in any court, criminal or civil, against any officer of the government or other person acting bona fide under the authority of the president, or in good faith for the purpose of suppressing rebellion, for any acts, matters, and things done or omitted to be done, or which shall be done on, from, and since January 6th, 1895, until martial law shall be declared to be no longer in force, whether done in a district in which martial law was proclaimed or in force or done in a district in which martial law was not in force, in the suppression of rebellion or in furtherance of the object of martial law, or in the arrest, imprisonment, deportation, trial, conviction, or sentence of any person charged with treason, misprision of treason, conspiracy to incite or commit treason, or with any disloyal or seditious practice or act, or with any act or conspiracy dangerous to the peace or the safety of life or property, or in the arrest and detention of persons held for investigation.

§ 1540. In order to prevent any doubt which might arise whether any act alleged to have been done as aforesaid under the order or authority of the President, or to have been done bona fide in order to suppress insurrection, was so done, it shall be lawful for the President or his successor to declare such acts to have been done under such order or authority or bona fide for the purpose aforesaid; and such declaration by any writing under the hand of the President or his successor shall in all cases be conclusive evidence that such acts

were so done, respectively; and such order or declaration may be shown under the general issue or pleaded in bar; and if so pleaded, such plea shall suffice, although it may set out merely the general effect of such order or declaration, or the fact only that such order or approval was given prior to the matter complained of or has been since received.

§ 1541. Whenever it shall be necessary or desirable for the government of Hawaii, in order to collect or recover any money or penalty, or to recover or obtain the possession of any specific property, real or personal, or to enforce any other right (except in respect to criminal prosecutions), to institute judicial proceedings, it shall, except as otherwise expressly provided by law, be competent for the attorneygeneral to bring and maintain a suit or suits for any such purpose in any appropriate court or courts of the Territory. All such suits shall be entitled in the name of the government of Hawaii by the attorneygeneral of the Territory against the party or parties or thing sued, as defendants or respondents, or as the case may be.

NOTE TO CHAPTER 98.

S$ 1530-1538 are L. R., act 26. §§ 1539-1540 are L. R., act 24. § 1541 is S. L., 1888, ch. 51, § 1.

Cases in Hawaiian Reports: Bowler v. Board Immigration, 7 Haw., 717; Widemann v. Thurston, 7 Haw., 474; Govt. v. Luce, 8 Haw., 17.

CHAPTER 99.

EMINENT DOMAIN.

§ 1542. Private property may be taken for the following purposes, which are declared to be public uses, to wit: Sites for public_buildings, fortifications, magazines, arsenals, navy-yards, navy and army stations, light-houses, range and beacon lights, cemeteries, quarantine stations, pesthouses, hospitals, dumping places for garbage and refuse material, wharves, docks, piers, dams, reservoirs, and bridges; also, all necessary land over which to construct roads, canals, ditches, flumes, aqueducts, pipe lines, and sewers; also, all necessary land for the growth and protection of forests, public squares, and pleasure grounds; also, all necessary land for improving any harbor, river, or stream, removing obstructions therefrom, widening, deepening, or straightening their channels; also, all necessary land from which to obtain earth, gravel, stones, trees, timber, and all necessary material for the construction of any public work.

§ 1543. A fee-simple estate may be acquired for all the purposes mentioned in section 1542.

§ 1544. Property which may be taken by virtue of this chapter includes: All real estate belonging to any person or persons, or corporations, together with all structures and improvements thereon, franchises, or appurtenances thereunto belonging, water, water rights, and easements; also, all property heretofore appropriated to some public use: Provided, however, That in such case it must appear that the use to which said property is sought to be put is a more necessary public use than that to which it has already been appropriated.

§ 1545. The superintendent of public works, acting in his official capacity, may institute proceedings on behalf of the Territory of Hawaii for the condemnation of property as provided for in this chapter; and the superintendent of public works may be referred to in this chapter as the plaintiff.

§ 1546. The circuit courts shall have power to try and determine all actions arising under this chapter, subject only to an appeal to the supreme court in accordance with law.

§ 1547. No property shall be taken by virtue of this chapter, unless it shall appear that it is to be put to some public use, and that the taking is necessary to such use.

§ 1548. Any agent or servant of the government may, for the purpose of locating or surveying land to be condemned in accordance with the provisions of this chapter, enter upon the same and make examinations and surveys, and such entry shall not constitute a cause of action in favor of the owner of the land, except for damages resulting from negligence on the part of such agent.

§ 1549. Actions under and by virtue of this chapter must be commenced by filing a petition and issuing a summons thereon. All persons who are owners or claimants of the property sought to be condemned must be joined as defendants: Provided, however, That in case the owner or claimant is unknown to plaintiff, it shall be sufficient if the petition includes a statement of that fact, and such defendant may be joined in the petition under a fictitious name. The petition must also contain a statement of the use to which the land sought to be condemned is to be put, a description of each and every piece of land sought to be condemned, and whether the same includes the whole or only a part of an entire tract or parcel. A map must accompany the complaint which shall correctly delineate the land sought to be condemned and its location.

§ 1550. When the defendant or claimant of the land sought to be condemned is known, the summons shall be served by delivering to him a certified copy thereof, together with a copy of the plaintiff's petition. In case the defendant or claimant, although known, can not be found, it shall be sufficient to leave said certified copy with some agent or person transacting the business of the defendant or claimant, or by leaving the same at his last known place of business or residence. In case the defendant, although known, was never a resident of the Hawaiian Islands, or has removed therefrom, or if the defendant or claimant is unknown, then the service of the summons upon such defendant or claimant may be made by publication thereof, in some newspaper published in the Hawaiian Islands, for such time as may be ordered by the court, not less than three months. The service of summons, as provided for in this section, shall be sufficient to give the court jurisdiction to proceed with and finally determine the case.

§ 1551. All property necessary for any public use may be united in one action. Any person in occupation of or having any claim or interest in any property sought to be condemned, or in the damages for the taking thereof, though not named in the complaint, may appear, plead, and defend in respect to his own property or interest, in like manner as if named in the complaint.

§ 1552. The court shall have power to determine all adverse or conflicting claims to the property sought to be condemned, and to the compensation or damages to be awarded for the taking of the same.

§ 1553. In fixing the compensation or damages to be paid for the condemnation of any property, the value of the property sought to be condemned and all improvements thereon shall be separately assessed; and if the property sought to be condemned constitutes only a portion of a larger tract, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion