9 FSM Intrm. 175

Gifts inter vivos must be fully and completely executed ) that is, there must be a donative intent to transfer title to the property, a delivery by the donor, and an acceptance by the donee. The intention to make a gift must be executed by a complete and unconditional delivery. Elaija v. Edmond, 9 FSM Intrm. 175, 180 (Kos. S. Ct. Tr. 1999).

A will written out by request by someone else does not constitute a holographic will within the meaning of 13 TTC 6, or one in the handwriting of the testator, but one prepared by another at the testator's direction within the meaning of 13 TTC 5. Elaija v. Edmond, 9 FSM Intrm. 175, 181 (Kos. S. Ct. Tr. 1999).

An ancient document or data compilation is authenticated if evidence that the document or data compilation, in any form, is in such condition as to create no suspicion concerning its authenticity, was in a place where it, if authentic, would likely be, and has been in existence 20 years or more at the time it is offered. Elaija v. Edmond, 9 FSM Intrm. 175, 182 (Kos. S. Ct. Tr. 1999).

This matter is an appeal from a title determination in favor of defendant Otniel Edmond, as the representative of the heirs of Edmond Tulenkun, by the Kosrae Land Commission as to the parcel of land known as Finpe located in Lelu, Kosrae, and which bears parcel number 001-K-12. Pursuant to Kos. C. § 11.614, good cause existed for a trial de novo in this matter, and the case proceeded to trial on January 20 and 21, 1999.

For the reasons set out below, the court vacates the findings of fact of the Kosrae Land Commission dated March 22, 1973, and sets aside both the determination of ownership, dated March 31, 1976, and the certificate of title, dated December 31, 1978. Title is confirmed in Lucy Elaija as the surviving spouse of Elaija Tosie.1 The caption is herewith amended to reflect the fact that Elaija Tosie is now deceased. The Kosrae Land Commission is directed to issue a certificate of title showing that Lucy Elaija is the owner of Finpe.

The court will not recount here the long and complex history of this case which resulted in this quiet title action coming on for a trial de novo pursuant to Kos. C. § 11.614 nearly 26 years after the Kosrae Land Commission made it's findings of fact on March 22, 1973, in favor of Otniel Edmond. It suffices for present purposes to say that the question for trial was, who has the superior claim to Finpe ) the heirs of Edmond Tulenkun or Lucy Elaija, the surviving spouse of Elaija Tosie?

The named defendant, Otniel Edmond, is the son of Edmond Tulenkun, who was in turn the son of Tulpe Nipi Tulenkun, known as Nipi. The named plaintiff, Elaija Tosie, passed away in 1995 at age 94, and succeeding to his claim is his widow, Lucy Elaija, who was 96 years old at the time of trial. Lucy contends that Nipi owned Finpe because it was given to her by Ned (also known as Nett, or Asrka Ned), and that Nipi gave Finpe to her husband Elaija because of the good services that she and her husband rendered to Nipi during Nipi's later years. Lucy also asserts that Nipi made a will in 1962 devising Finpe to Elaija. Elaija and Lucy were living at Finpe by the mid-1950's. Elaija continued to live there until his death in 1995, while Lucy continues to reside at Finpe.

Defendant Otniel Edmond, who claims the land for himself and the other heirs of his father Edmond Tulenkun, contends that Ned gave Finpe to his father and not to his grandmother Nipi. In further support of his claim, Otniel looks to the fact that his father Edmond Tulenkun's name appears on the parcel in the 1932 Japanese survey map. Hence, Otniel's claim is that even if his grandmother did give Finpe to Elaija, it was not hers to give, because the land actually belonged in the first instance to his father. On this theory, Finpe became the property of Edmond Tulenkun's heirs upon his, Edmond's, death.

After hearing and considering all the evidence,2 the court concludes that Lucy Elaija's claim is superior to Otniel Edmond's. The court finds that Nipi owned Finpe, and that during her life she made a completed gift of Finpe to Elaija Tosie. When Elaija Tosie died, his interest passed to his widow, Lucy Elaija, who now owns Finpe.

2. Elaija Tosie and his wife Lucy looked after Nipi in her declining years. In return for these good services, and before Nipi executed her will, Nipi gave the land Finpe to Elaija. Loretta Quintin married Elaija's eldest son Quintin in 1954, and at that time moved to a parcel adjacent to the disputed parcel. When Loretta moved there, Nipi was living with Elaija and Lucy at Finpe, and Elaija and Lucy were looking after Nipi. Elaija continued to live at Finpe until his death in 1995, while Lucy, 96 at time of trial, continues to reside there.

3. Nipi adopted her own granddaughter, Tulpe Kun Jonathan, who was the daughter of Nipi's daughter Marta, when Tulpe Kun Jonathan was a very young child. Tulpe Kun Jonathan was 57 years old at the time she testified. Nipi talked to Tulpe about Finpe and told her that she was going to "put in writing" that she had given Finpe to Elaija. Nipi did so by executing a will in 1962 which left Finpe to Elaija.

4. Joab Sigrah wrote out the will at Nipi's direction. Nipi signed the will on September 10, 1962, and her signature was witnessed by Tosie Thomson, Paliknoa Nena, Moses Sigrah and Joab Sigrah. Lucy Elaija Tosie was also present when Nipi called the witnesses together so that they could witness her will, and remembered Nipi signing the will. Tulpe Kun Jonathan also remembered that there was a time when Nipi brought people together and made a will regarding Finpe.

7. Andrew Isaac, who is Rev. Isaac's son, and who was 54 at the time he testified, recalled that on January 1, 1956, after the New Year's service, Nipi and Elaija Tosie came over after the service and asked Rev. Isaac to leave the land because the land did not belong to Edmond. January 1, 1956, was the date of Rev. Isaac's ordination. Rev. Isaac's house, which was a local Kosraean structure, was dismantled the same day and moved 60 feet away to Kilafwa Palik's property. Later, Edmond told Rev. Isaac to "be patient," because after his mother died he would give Rev. Isaac back the land.

The purpose of a quiet title action is to determine, as between the parties to the proceeding, who has the better title. 65 Am. Jur. 2d Quieting Title § 45 (1972). In this case, that means the court must determine who, as between Lucy, the surviving spouse of Elaija Tosie, and the heirs of Edmond Tulenkun, has the better title to Finpe. The first step in reaching this determination is to resolve the conflicting claims of Edmond and his mother Nipi, since Lucy takes through Elaija, who in turn takes through Nipi. On this point, the testimony of Andrew Isaac about the events of January 1, 1956, is significant.

January 1, 1956, is a memorable date because Andrew Isaac's father, the Rev. Alik Isaac, was ordained as a minister on that day. Sometime before January 1, 1956, Rev. Alik Isaac had built a house on part of Finpe with the permission of Nipi's son, Edmond. In return for that permission, Rev. Isaac had apparently given Edmond land in Utwe. After the New Year's church service on January 1, 1956, Nipi and Elaija came to Rev. Isaac and asked him to leave Finpe. Nipi told Rev. Isaac that Edmond did not own Finpe, but that it belonged to her. Enlisting the aid of men from the community, Rev. Isaac and some volunteers immediately dismantled the Kosraean house that Rev. Isaac had built on Finpe and on that same day moved it approximately 60 feet away to Bot, a parcel of land owned by Kilafwa Palik. Later, Edmond and Rev. Isaac met, and Edmond told Rev. Isaac not to worry, that after his mother died he would give the land back to Rev. Isaac.

The fact that the Rev. Alik Isaac immediately left Finpe when Nipi told him that she was the owner of Finpe, not her son Edmond, points to Nipi's superior claim to Finpe, and that her claim was recognized in the community. "Implicit in the concept of ownership of property is the right to exclude others; that is, a true owner of land exercises full dominion and control over it and possesses the right to expel intruders." 63A Am. Jur. 2d Property § 34, at 265 (1984) (footnote omitted). Additionally, an awareness on Edmond's part that his mother's claim was superior to his is evidenced by the fact that Edmond told Rev. Isaac that he would give him back the land after his mother died.

Defendants contend that their claim to Finpe is supported by the fact that the 1932 Japanese survey map shows Edmond Tulenkun's name in connection with Finpe. In its March 22, 1973, findings of fact, the Kosrae Land Commission found in favor of Otniel Edmond and issued a determination of ownership in his favor. In so doing, the Land Commission noted that "Edmond Tulenkun [Otniel Edmond's father] was registered on the Japan Map [i.e., the Japanese survey map of 1932]," and apparently found this fact persuasive.

In the context of a Kosrae land dispute, one of the earliest cases from the Trust Territory era speaks directly to the question of the amount of weight that a court should give to the fact that the 1932 Japanese map assigns a specific name to a land parcel. Jesse v. Ebream involved a dispute over the parcel of land known as Fwinnem, which, like Finpe, is also located in Lelu, Kosrae. The court

The plaintiffs appear to base their claim largely on the fact that in the official Japanese survey of Kusaie ending in 1932, most of the land in question was shown under the name of the plaintiff Jesse. The court takes judicial notice that in this survey emphasis was placed primarily on determination of boundaries, that the determinations as to who should be shown as owners were made largely in the field at the time the boundary lines were checked, and that there is no assurance either that all claims to ownership were considered or that there was any detailed investigation of the exact extent of or basis for any alleged owner's interest in the land shown under his name. It appears that, in a number of instances, the person in whose name a piece of land was shown in the survey records did not know that that piece of land had been shown in his name until the records of the Japanese survey were made generally available to the people on Kusaie during the American administration. The showing of a given piece of land under a particular person's name in this survey is, therefore, at best only some evidence as to ownership or control. When such a person's rights are disputed, the court will consider other evidence as well, and determine the ownership on the basis of all the evidence.

As the Ebream court noted, the fact that a claimant's name is shown on the 1932 map is not dispositive. In this case, the fact that Edmond Tulenkun's name appears on the 1932 map does not point to the conclusion that Otniel, through his father Edmond Tulenkun, has the superior claim to Finpe. The court concludes that as between Nipi and her son, it was Nipi who was the rightful owner of Finpe. She therefore had the right to give Finpe to Elaija in return for the good deeds and services that Elaija had performed for her if she chose to do so. That conclusion presents the next issue.

[t]he established rule is that gifts inter vivos must be fully and completely executed ) that is, there must be a donative intent to transfer title to the property, a delivery by the donor, and an acceptance by the donee. . . . [T]he intention [to make a gift] must be executed by a complete and unconditional delivery.

The court is persuaded by the testimony of both Lucy and Tulpe Kun Jonathan that Nipi, during her life, gave Finpe to Elaija Tosie. Tulpe Kun Jonathan, Nipi's adopted daughter (who is Nipi's biological granddaughter), testified that Nipi talked to her about Finpe, and that Nipi told her that she had given Finpe to Elaija because of his good services to her. Lucy testified similarly on this point.

The precise time that the gift was completed is not clear. Loretta Quintin testified that Elaija and Lucy were already in possession of Finpe in 1954, when she moved there. Plaintiff contends in his written closing argument that Nipi actually gave Finpe to Elaija in 1950, which is consistent with the record of the now deceased Elaija's November 21, 1972 testimony before the Land Commission. However, since the trial before this court was de novo, that testimony is not now before the court.

Lucy Elaija testified that Nipi "placed" her and Elaija on Finpe in 1965. As of January 1, 1956, when Nipi and Elaija met with Rev. Isaac, Nipi told Rev. Isaac that Finpe did not belong to her son Edmond, but belonged to her. In context, however, this statement was directly related to Nipi's and her son Edmond's competing interests, and not as an assertion by Nipi that as of 1956 she was still exercising dominion and control over Finpe to the exclusion of Elaija, who was already in possession.

In any event, the court concludes that the gift was complete sometime before Nipi made her will, because according to the testimony of Tulpe Kun Jonathan, Nipi's adopted daughter and biological granddaughter, Nipi intended to confirm the gift by "putting in writing" what she had already done, and it was to this end that she made her will. It is a fair inference from all the evidence presented that Nipi had a limited understanding of legal matters, and such a course of conduct on her part was consistent with that understanding. The question arises, however, whether the court may properly consider the will as confirmation of the already completed gift to Elaija.

Defendant contends the court should not consider the will, and raises two points. Defendant first contends that plaintiff failed to meet the requirements of 13 TTC 5 because it failed to have at least two of the witnesses to the will prove that the signature on the will was actually that of Nipi. Defendant also contends that plaintiff failed to move the will into evidence.

The court first disposes of the second issue, which may reflect some confusion on defendants' part. At the joint request of the parties, the court and court staff went to Lucy's home to take her testimony. At the conclusion of her testimony, plaintiff's counsel attempted to have the will marked as an exhibit, but the court indicated it would take up the matter later in the courtroom. When court was back in session at the courthouse, plaintiff's counsel brought up the question of the will, and the court indicated it would visit the question later in the afternoon. In fact, the court turned to the question of the will on the second day of the trial and admitted the will over the defendants' objection. Taped Record of Trial, tape 2, counter 450. The defendants' contention that plaintiff failed to move the will into evidence is therefore not well taken.

Defendants' second contention is that the court should not consider Nipi's will at all, because plaintiff failed to put on at least two witnesses to the will to authenticate Nipi's signature. Defendants' deem Nipi's will to be a holographic will within the meaning of 13 TTC 6. However, since Joab Sigrah wrote out the will at Nipi's request, the will does not constitute a holographic will, or one in the handwriting of the testator, but one prepared by another at the testator's direction within the meaning of 13 TTC 5.

Be that as it may, defendants' point is that the court should not consider the will because plaintiff, as proponent of the will, has failed to demonstrate that the will was properly executed, and hence legally valid. However, because the court concludes that title to Finpe did not pass by testamentary disposition to Elaija, but by inter vivos gift, the legal validity of Nipi's will is of academic interest.3 The issue for present purposes is whether the court may consider Nipi's will as additional,

Rule 901(a) of the Kosrae Rules of Evidence, which provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Illustration (b)(8) to Rule 901, titled "[a]ncient documents or data compilation," provides as follows:

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.

On points (A) and (B), plaintiff presented no specific testimony relative to Nipi's will, which was executed on September 10, 1962, nearly 37 years ago. At the same time, defendants do not contend that the will is anything other than what it purports to be, and the court can see nothing which creates a suspicion that it is anything else. Both Lucy Elaija's and Tulpe Kun Jonathan's recollection regarding the circumstances of the preparation and execution of the will are consistent with the will itself. As to section (C) of Rule 901(b)(8), the will meets the requirements of that section in that it is more than 20 years old. The court concludes that Nipi's will stands authenticated under Rule 901(a) and (b)(8).

With respect to the content of the will, that Finpe is to go to Elaija, this statement falls within Rule 803(16) of the Kosrae Rules of Evidence. That rule provides that "[s]tatements in a document in existence twenty years or more the authenticity of which is established" are excepted from the hearsay rule. Hence, the court may consider Nipi's will for its evidentiary worth as a confirmation of Nipi's gift to Elaija. Tulpe Kun Jonathan testified that Nipi wanted to put the fact of the gift "in writing," and the will is consistent with Nipi's intent in this respect. The court concludes that Nipi's will provides additional evidence that Nipi gave Finpe to Elaija by inter vivos gift.

The defendants cite to Title 13 of the Trust Territory Code, but do not show a date for the Code edition to which they cite. However, the Trust Territory Code would not have governed the requirements for a valid will executed on September 10, 1962, which is the date Nipi executed her will. The first edition of the Trust Territory Code to set out the requirements for a validly executed will is the 1966 edition ) neither the 1952 nor the 1959 Trust Territory Codes appear to touch on this point. In 1962, Kosrae was a part of the Ponape District, and the governing law relative to wills at that time appears to have been, at least arguably, Ponape District Order No. 9-57, which was signed by the Acting District Administrator on March 22, 1957, to "become law on Ponape Island, effective April 1, 1957." That order provides specific requirements in order for a will to make an effective disposition of land. "The will must be in writing, signed by the person giving the land in the presence of at least two witnesses who themselves sign the will in the presence of each other and the person making it." Additionally, a will disposing of land must also be approved by "the District Land Office, Nanmwarki, the Naniken, and the Magistrate, of the municipality in which the land lies". Further, the will must be "approved in writing by the District Administrator, Ponape," and "must be filed with the Clerk of Courts for the Ponape District within 60 days after being signed by the District Administrator."

It hardly seems likely that the order could have been intended to apply to wills executed in Kosrae, since the order provides for approval by Ponape customary leaders. What can be said is that there appear to be no clearly ascertainable statutory requirements for the execution of a valid will in Kosrae in 1962.