THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
CHUUK STATE APPELLATE DIVISION
Cite as In re Ori, 8 FSM Intrm. 593 (Chk. S. Ct. App. 1998)

[8 FSM Intrm. 593]

IN THE MATTER OF
THE ESTATE OF PETERO ORI,
Deceased,

PAULA ORI HAGLELGAM,
Petitioner.

CIVIL APPEAL NO. 9-96
 
OPINION

Argued:  December 9, 1998
Decided:  December 16, 1998

BEFORE:
Hon. Wanis R. Simina, Associate Justice, Chuuk State Supreme Court, Presiding
Hon. Yoster Carl, Temporary Justice, Chuuk State Supreme Court*
Hon. Midasy O. Aisek, Temporary Justice, Chuuk State Supreme Court**

*Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
**Directing Attorney, Micronesian Legal Services Corporation, Weno, Chuuk

APPEARANCES:
For the Appellant:     Stephen V. Finnen, Esq.
                     Law Offices of Saimon & Associates
                     P.O. Box 1450
                     Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review
     The standard for review of the exercise of discretion by the trial justice is the abuse of discretion standard because the trial judge has the opportunity to observe the demeanor and candor of the witnesses and is in the best position to make the determination on issues of fact.  In re Ori, 8 FSM Intrm. 593, 594 (Chk. S. Ct. App. 1998).

Domestic Relations ) Probate
     The terms of the will and the clear intent of the testator control who shall be in actual physical control of the land for the purpose and its preservation and for the purpose of granting its reasonable use by those persons having a lawful right to the use of the land.  In re Ori, 8 FSM Intrm. 593, 594 (Chk. S. Ct. App. 1998).

Custom and Tradition ) Chuuk; Domestic Relations ) Probate
     Because the Chuuk Constitution requires the courts to make decisions consistent with Chuukese

[8 FSM Intrm. 594]

customs and traditions, Chuukese custom and tradition may prevail over the provisions of a holographic will in deciding who may enter upon land for the purpose of making reasonable use thereof.  In re Ori, 8 FSM Intrm. 593, 595 (Chk. S. Ct. App. 1998).

*    *    *    *

COURT'S OPINION
WANIS R. SIMINA, Associate Justice
     This is an appeal from a decision of the Trial Division in the probate of an estate.

     The Trial Division received into evidence a document which was considered throughout these proceedings as a holographic will written by the deceased, Petero Ori.  The validity of this instrument is not contested.  The basic issues in this appeal related primarily to the use and disposition of that portion of the estate know as the Island of Fonou.

     During oral argument, Counsel for Petitioner, Paula Ori Haglelgam, (Appellant), conceded that the rulings of the Trial Justice were largely in favor of the Appellant.
     
     Counsel for the Appellant raised essentially three points or objections to the decision of the Trial Justice.  First, Counsel contend that the Trial Justice should have concluded that the extended family of the deceased, including his nieces and nephews, do not have unfettered use of the land in question and do not have the right to remove sand or other material from the land.  In essence, Counsel for the Appellant seeks an order requiring that all such persons must first obtain permission from the Appellant before entering the land for any purpose.

     Second, Counsel for Appellant argues that the Trial Justice should have clarified in terms certain, that the Appellant, Paula Ori Haglelgam, is the one and only person in charge of the land for the purpose of its use and preservation.

     Third, it is argued that there was an abuse of discretion by the Trial Justice in his rulings or absence of rulings relative to control and use of the land in question.

     Considering these issues in reverse order, this Court has consistently held that the standard for review of the exercise of discretion by the Trial Justice is the "abuse of discretion" standard.  Onopwi v. Aizawa, 6 FSM Intrm. 537, 539, 1 CSR 20, 22 (Chk. S. Ct. App. 1994).  The rule that a trial judge has a great deal of discretion in deciding issues is universal in common law jurisdictions.  The reasoning is equally well known as being that the trial judge has the opportunity to observe the demeanor and candor of the witnesses and is in the best position to make the determination on issues of fact.  We have reviewed the record carefully and find no indication of an abuse of discretion in the conduct of the proceeding in the Trial Division.

     Concerning the second issue raised by Appellant, this Court is sympathetic with the view that the lack of certainty of who is in charge of the land, creates a climate conductive to strife and turmoil.  For this reason, and it is not clear from the record or the arguments of counsel why such clarification was not made by the Trial Justice, this court concludes that the terms of the will itself control this issue and that the clear intent of the testator, Petero Ori, as stated in the will, is that the Appellant, Paula Ori Haglelgam, shall be in actual physical control of the land in question for the purpose and its preservation and for the purpose of granting its reasonable use by those persons having a lawful right to the use of the land.

[8 FSM Intrm. 595]

     The final issue involves which persons shall have the right to use of the land and to enter the land and enjoy its fruits.  This raises the basic issue of which controls, the provision of the will or Chuukese custom and tradition.

     The Trial Justice correctly concluded that the Chuuk State Constitution, Article VII, 14 requires the Courts to make decisions consistent with Chuukese customs and traditions.  The Trial Justice further concluded that such under Chuukese custom and tradition, and this Court reiterates that members of the extended family of the deceased are entitled to enter upon the land for the purpose of making reasonable use thereof including the removal of a reasonable amount of sand and material.

     Accordingly, the judgment of the Trial Justice is affirmed subject to the clarifications and modifications referred to herein.

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