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Important Judgments: Delivered in the Compensation Court and Native Land Court. 1866–1879.

Native Land Court. [Papakura]

page 19

Native Land Court. [Papakura]

April, 1867.

F. D. Fenton, Esq., chief Judge.

Papakura. — Claim of Succession.

This grant was made on the 25th day of February, 1863, and assured to Ihaka Takaanini Te Tihi, his heirs, and assigns, an estate near Papakura, containing 1,120 acres.

The grantee died in the month of February, 1864, seized of these lands, without having made a valid disposal thereof by will or otherwise, leaving three children born in wedlock surviving him, named Erina, Te Wirihana, and Ihaka, one girl and two boys. The widow, on behalf of herself and these children, asks for an order of the Court declaring them entitled to succeed to the above estate, and the right to do so is contested by Heta Te Tihi, a cousin of the deceased, and other members of the tribe. The section of The Native Lands Act, 1865, under which the jurisdiction of the Court in these matters arises, directs the Court to ascertain who, according to law, as nearly as it can be reconciled with native custom, ought in the judgment of the Court to succeed to the hereditaments the subject of the investigation. The intention of the Legislature appears to be that English law shall regulate the succession of real estate among the Maoris, except in a case where a strict adherence to English rules of law would be very repugnant to native ideas and customs. The leaning of the Court will always be to uphold Crown grants and the rules of law applicable to them, and the Court will decline to consider the particular circumstances under which the grant was originally obtained, or the equities which might have been created, or understood to have been created, at the time thereunder, unless the evidence shall disclose strong reasons for deviating from so obvious and desirable a rule. It would be highly prejudicial to allow the tribal tenure to grow up and affect land that has once been clothed with a lawful title, recognised and understood by the ordinary laws of the country. Instead of subordinating English tenures to Maori customs, it will be the duty of the Court, in administering this Act, to cause as rapid an introduction amongst the Maoris, not only of English tenures, but of the English rules of descent, as can be secured without violently shocking Maori prejudices. In this case we think that the evidence discloses no equities in favour of the tribe, and we see no reason to make any interference with the ordinary law, except in one particular. The Court does not think the descent of the whole estate upon the heir-at-law could be reconciled with native ideas of justice or Maori page 20custom; and in this respect only the operation of the law will be interfered with. The Court determines in favor of all the children equally. The judgment of the Court, therefore, is unanimous that Erina Takaanini, Te Wirihana Takaanini, and Ihaka Takaanini ought to succeed to the hereditaments above mentioned in equal shares as tenants in common.