Cite as Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 287]

the decision must be vacated and the matter remanded for re-hearing. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287, 289 (Kos. S. Ct. Tr. 2006).

Domestic Relations – Probate

All wills executed after the Kosrae State Code’s October 1, 1985 effective date must comply with Title 16, Chapter 2. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287, 289 (Kos. S. Ct. Tr. 2006).

Domestic Relations – Probate

Oral wills may only dispose of personal property only and must meet other requirements. Oral wills may not dispose of real property or land, and any oral will which disposes of land or interests in land is invalid to that land. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287, 289 (Kos. S. Ct. Tr. 2006).

Appellate Review – Standard of Review – Civil Cases

When some undisputed testimonies appearing in the transcript raise questions that the Land Court did not assess the evidence properly and when a careful review of the record and transcript finds that the appellants' argument have merit, the Land Court decision was not based upon substantial evidence. Heirs of Mackwelung v. Heirs of Taulung, 14 FSM Intrm. 287, 289-90 (Kos. S. Ct. Tr. 2006).

COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice:

This is an appeal from a Decision issued by the Kosrae Land Court on July 17, 2005 for parcels 075-T-01, 075-T-02 and 075-T-03, also known as Meloh in Tafunsak Municipality. Appellants' brief was filed on February 20, 2006. Appellees’ brief was filed on May 9, 2006. The hearing on briefs was set for May 15, 2006. Chang William appeared for the Appellants. Appellees were represented by Robinson Timothy.

Appellants dispute the ownership determination for parcel all three subject parcels, made by the Kosrae Land Court, as specified in its Memorandum of Decision in LC No. 28-04. Appellants claim that the Land Court evidentiary findings improperly relied upon written wills which were not accepted into evidence; that the Land Court's findings were not based upon substantial evidence, and that the Land Court did not conduct a fair hearing.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellants. This Memorandum of Decision explains the Court's decision and reasoning, and remands this matter back to the Kosrae Land Court for further proceedings.

I.  Analysis and Conclusions.

The provisions of Kosrae State Code, Section 11.614 are applicable to appeals made from a decision entered by the Kosrae Land Court. Pursuant to Section 11.614(5)(b), this Court is required to apply the "substantial evidence rule" to all Land Court decisions. If this Court finds that the Land Court decision was not based upon substantial evidence or that the Land Court decision was contrary to law, this Court must remand the case to the Land Court with instructions and guidance for re-hearing the matter. Kos. S.C. § 11.614(5)(d).

The Court has carefully reviewed the Kosrae Land Court record for parcels 075-T-01, 075-T-02 and 075-T-03. The record includes documents issued by the former Kosrae State Land Commission and the record for Land Commission proceedings which took place prior to January 2002. Appellants had appeared pro se at the Kosrae State Land Commission and the Kosrae Land Court proceedings. Appellees were represented by Clanry Likiaska at the Land Court proceedings. The Kosrae Land Court based its findings and decision of ownership of the subject parcels in favor of the Appellees' claims and against the Appellants' claims. The Appellants' arguments are addressed in turn.

1.  The Land Court's consideration and application of Irving Mackwelung's will.

Appellant argues that the Land Court erred when it accepted and considered an oral will to dispose of the subject land, and that it accepted and considered a written will which was not accepted into evidence.

The record in the file does not contain the written wills relied upon by the Land Court in its findings. All factual findings made by the Land Court must be supported by substantial evidence. Kos. S.C. § 11.614(5)(b). It is error for a trial court to rely on exhibits never marked at trial. A justice commits reversible error when his decision has relied on a document that is not a part of the record. Thomson v. George, 8 FSM Intrm 517 (App 1998). Here, the Land Court findings and decision relied upon purported written wills which are not part of the record. The findings of the Land Court were not supported by substantial evidence and therefore the decision must be vacated and the matter remanded for re-hearing.

Furthermore, all wills executed after the effective date of the Kosrae State Code must comply with Title 16, Chapter 2. The effective date of the Code was October 1, 1985. Oral wills may only dispose of personal property only and must meet other requirements. Kos. S.C. § 16.204(2). Oral wills may not dispose of real property or land, and any oral will which disposes of land or interests in land is invalid to that land. George v. Abraham, 14 FSM Intrm. 102 (Kos. S. Ct. Tr. 2006).

2.  The Land Court's assessment of testimonial evidence.

The Appellants further argue that undisputed testimony presented at the Land Court hearing was improperly rejected without basis. This undisputed testimony concerned Irving Mackwelung's gift of land to the Taulung. Appellants also argue that the Land Court's decision relied upon a claim that did not have any supporting evidence: a claim that the Taulung's grandmother made a gift of land to Mackwelung's sister.

Some undisputed testimonies appearing in the transcript raises questions upon this Court that the court below (Land Court) could have made some errors. In the findings of fact part of the Land Court decision, the Court acknowledged the land in issue was owned by Mackwelung, as his name is written in the 1932 map, then it stated Mackwelung gave the land to Jacob (father of appellees) because Jacob’s mother Nimanlur, was sister to Mackwelung. Tr. A-19, A-21. There was no testimony with regards to this finding. At page A-22, the Court recognized Irving divided the land Meloh to Tulensa Mackwelung, Kun Jaboar and Alokoa and Swiney Taulung. If the land came down to Jacob Taulung through his mother, Nimanlur, then why would Irving be recognized as the person giving Alokoa and Swiney the parcel they claim today? Better yet, if Nimanlur, owned the parcel in 1932, would not her name be registered in 1932 instead of Mackwelung? The record at the preliminary hearing shows Alokoa Jacob Taulung testifying, A-7:

Q:  Kom a sramsram?

A:  Aok

[14 FSM Intrm. 290]

Q:  Ma oya an an?

A:  Ma lal nina Niman.

Q:  Su sang?

A:  Mackwelung.

Then at Formal Hearing, the same person, Alokoa Jacob Taulung’s testified, A-10;

Q:  Su an an se?

A:  Meloh.

Q:  Kom wi yok se orek ingena a?

A:  Mo.

Q:  Fuka tu Mackwelung el sang ip se inge lal Jacob?

A:  El nutel.

In Swiney's testimonies from page A-27 to A-35, he is testifying that Irving was the person who divided the land at issue, that Irving had the authority to divide:

7-35 Q:  Su orala kitakat se ma kom …Moses, komtal, Palkoa, Kun el lung. Su orala ah?

A:  Irving

Q:  Tiana Jacob?

Q:  Tiana Jacob Taulung pa orala uh, Irving pa orala an?

A:  Aok, El pa sramsram ukok angan uh.

Q:  Kalma pa Irving pa oasr ku la in kitalik an we?

A:  Aok.

This testimony strongly supports the Appellants' argument that the Land Commission did not assess the evidence properly. I have carefully reviewed the record and transcript in this matter and find the Appellants' argument to have merit. I conclude that the Land Court decision was not based upon substantial evidence.

Based upon the record in this matter, arguments made at the hearing and applicable law, I find in favor of the Appellants.

II.  Judgment.

Judgment is entered in favor of the Appellants and against the Appellees. The Land Court decision, entered on July 17, 2005, for parcels 075-T-01, 075-T-02 and 075-T-03, also known as Meloh, is vacated and set aside as void.

III.  Order of Remand.

This matter is now remanded to Kosrae Land Court for further proceedings on parcels 075-T-01, 075-T-02 and 075-T-03. The Kosrae Land Court shall hold hearings and issue written findings and a decision on all three parcels, consistent with the statutory and procedural requirements. The Kosrae Land Court shall issue the decision on all three parcels, to reflect the ownership and boundaries of each parcel. All proceedings shall be conducted according to the following instructions:

1.  The Land Court shall provide notice and hold hearings, as required by Kosrae State Code, Title 11, Chapter 6, the KLCRP and General Court Orders.

2.  The Land Court shall hear the Appellant, Appellees, and their witnesses on the issue of ownership of the three subject parcels.

3.  The Land Court may consider any evidence, including testimony, which was received at the prior hearings, giving appropriate evidentiary weight to those testimonies which were based upon hearsay or not subject to cross examination, and giving appropriate evidentiary weight to documentary evidence which were offered without foundation or authentication.

4.  This matter shall be assigned highest priority by the Land Court, and shall be assigned for hearing and further action by the first Land Court Justice who is available to hear and adjudicate this matter, and who is not disqualified due to prior service as a Land Commissioner, or other grounds.

5.  The Kosrae Land Court shall complete all hearings within 120 days, and shall issue its written findings and decision within 120 days after the close of the hearings, as provided by law.