Estate of Iosep Losa

POHNPEI LAW REPORTS

IN THE MATTER OF THE

ESTATE OF IOSEP LOSA,

Pohnpei Civil Action No. 185-87

Trial Division of the Pohnpei Supreme Court

Petition for the appointment of petitioner as successor of intestate who was petitioner's maternal uncle. The petitioner's mother was the only living sibling of the decedent. The decedent had no issue. He purported to devise his estate by an oral will to the petitioner. The petitioner claimed either through the will or by intestate succession.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held (1) that the petitioner's failure to prove that the alleged oral will was declared by the testator in peril of death, and the fact that the declaration was not made before two independent witnesses rendered the will ineffective and therefore it would not be committed to probate; but (2) that under D.L. 4L-155-78 the order of succession to the estate of intestates provided for a right of representation in the decedent's surviving sister and therefore to the petitioner, as the decedent's sister (mother of the petitioner) gained the right of succession through her parents by right of representation.

1. Wills - Oral Wills - Governing Law

The execution and effectuation of an oral will is governed by State Law No. 1 L-80-86.

2. Wills - Oral Wills - Requirements

An oral will may be made by a person in imminent peril of death, illness or otherwise, and shall be valid only if the testator dies as

a result of the impending peril; it must be declared by the testator before two disinterested witnesses, and submitted for probate within six months after the death of the testator, unless permitted by the Court to be submitted later, for good cause, and may dispose of only personal property, and only to an aggregate value not exceeding five thousand dollars (S.L.1L-80-86, S.6)

3. Intestacy - Distribution of Estates of Intestates - Governing Law

The distribution of the estates of persons who die intestate is governed by the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78.

4. Intestacy - Order of Succession to Estates of Intestates

The order of succession to the estates of intestates is as follows:

1. to the children of the intestate;

2. if there be none, to the parents of the intestate;

3. if there be none, to the grand-parents of the intestate;

4. if there be none, to the great grand-parents of the intestate;

5. and so forth, ad infinitum, in accordance with the provisions of the act. (D.L. No. 4L-155-78, Section 3)

5. Intestacy - Order of Succession to Estate of Intestate

Where the only surviving sister of intestate without issue has through their parents a right of succession by representation under the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78, the petitioner, a daughter of the decedent's sister, acquires through her mother the right of representation, where other issue of the decedent's sister after formal public notice make no adverse claim, and a written conveyance by the surviving sister assigns her right in the proceeds of the estate to the petitioner.

Counsel for Petitioner: Erwine H. Nanpei

Micronesian Legal Services Corporation

JUDAH C. JOHNNY, Associate Justice.

This matter came specially, before me on May 13, 1988, for hearing on the petition of Marko Johnny, who was present with counsel the Micronesian Legal Services Corporation by Erwine H. Nanpei.

This matter seeks appointment of the petitioner as successor of decedent losep Losa to his estate. The petition is granted on the following facts and conclusion.

1. The petitioner is a citizen of the Federated States of Micronesia, resident of the State of Pohnpei, Sokehs Municipality.

2. losep Losa was a citizen of the Federated States of Micronesia, resident of the State of Pohnpei, Sokehs Municipality. He died intestate on August 7,1987. He was without issue. He was

the natural brother of the mother of the petitioner. The petitioner's mother is the only living sibling of the decedent. She is a citizen of the Federated States of Micronesia, resident of Pohnpei State.

3. The estate of the decedent consists of the following:

a. Bank Account No. 029-067483 at the Bank of Guam, in the amount of $170.78, or less.

b. Balance of War Claims No. 1408-H in the approximate amount of $2,000.00.

4. The decedent purported to devise his estate by will to the petitioner, but such act did not comply with the law of wills in Pohnpei State.

Conclusions of Law

[1-2] The petitioner based her entitlement to the estate initially by way of an oral will. The execution and effectuation of an oral will is governed by State Law No. 1 L-80-86. Section 6 of the law provides in brief, that such will may be considered only if made by a person in imminent peril of death, illness or otherwise, and shall be valid only if the testator dies as a result of the impending peril.

It must be declared by the testator before two disinterested witnesses, and submitted for probate within six months after death of the testator, unless permitted by the Court to be submitted later, for good cause. Such will may dispose of only personal property, and only to an aggregate value not exceeding five thousand dollars.

The petitioner could not prove that such alleged will was declared in peril of death. It was alleged to have been made to the petitioner and her husband. While the husband may be a disinterested witness, the petitioner is an interested witness. I found this avenue of the petitioner's claim inadequate and for that matter did not commit the alleged will to probate.

[3] The other route by which the petitioner brings her claim to the estate is intestate succession. The distribution of the estates of persons who die without a will is governed by the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78. This Court in numerous prior cases, distributed estates under the Act. See the following cases: In re: The Estate of Nelen Ioanis/Nelen Karel, PCA No. 40-85 (1985); The Estate of Uriel Eliam. PCA No. 55-85

(1985); The Estate of Katalino Actouka, PCA No. 126-85 (1985); The Estate of Kanti Salomon, PCA No. 128-85 (1985) The Estate of Peterihno Johnny, PCA No. 133-85 (1985); The Estate of Gorman Booth, PCA No. 146-85 (1985); The Estate of Kapus James PCA No.152-85 (1985) The Estate of Deruko Lingati PCA No. 156A-85 (1985); The Estate of Ishmael Edward, PCA No. 183-85 (1986); The Estate of Pertin Edgar, PCA No. 194-85 (1985); The Estate of Elizabeth Panuelo, PCA No. 216-85 (1986); The Estate of Baby George, PCA No. 217-85 (1986); The Estate of Martani Lipai, PCA No. 2-86 (1986); The Estate of Antreas Lewis, PCA No. 6-86 (1986); PCA No. 6-86 (1986); The Estate of Sarapin Lorens, PCA No. 10-86 (1986); The Estate of Nihkolaus John, PCA No. 12-86 (1986); The Estate of Kasinto Sersi (Kasindo Sercy), PCA No. 27-86 (1986; The Estate of Jesse Edwards, PCA No. 37-86 (1986); The Estate of Carl Danis, PCA No. 42-86 (1986); The Estate of Robert Lucios, PCA No. 59-86 (1986); The Estate of Kiosi Hespak, PCA No. 73-86 (1986); The Estate of Elianter Edward, PCA No. 90-86(1986); The Estate of

Kedes Agripa, PCA No. 113A-86 (1986); The Estate of Strik Yoma, PCA No. 145-86 (1987); The Estate of Alper Obet (Alber Opet) PCA No. 160-86 (1986); PCA No. 160-86 (1986); The Estate of Albert Sarapio, PCA No. 24-87 (1987) The Estate of Welter Daniel, PCA No. 27-87 (1987); The Estate of Justina Weirlangt; PCA No. 60-87 (1987); The Estate of Akileus Amor, PCA No. 74-87 (1987); The Estate of Alpert Dadius, PCA No. 8387 (1987); The Estate of Nichima Orlando, PCA No. 112-87 (1987); PCA No.112-87 (1987); The Estate of Istaro Haritos, PCA No. 131-87 (1987); The Estate of Albert Henry, PCA No. 156-87 (1987); The Estate of Masao Mack, PCA No. 189-87 (1987); The Estate of Estaban Elias, PCA No. 208-87 (1988); The Estate of Bethwel Meninzor, PCA No. 218-87 (1988); The Estate of Ainiris loakim, PCA No. 1-88 (1988); The Estate of Ichiro Benjamin, PCA No. 17-88, (1988); The Estate of Wetner Nelper, PCA No. 18-88 (1988); The Estate of Sam Lipai, PCA No. 55-88 (1988); and The Estate of Luis Polly, PCA No. 91-88 (1988).

[4] It is shown from the findings that the decedent died intestate, and without issue. The known survivor is a sister who is the

mother of the petitioner. Under D.L. No. 4L-155-78, the order of succession to the estates of intestates is as follows:

1. To the children of the intestate;

2. If there be none, to the parents of the intestate;

3. If there be none, to the grand-parents of the intestate;

4. If there be none, to the great grand-parents of the intestate;

5. And so forth, ad infinitum, in accordance with the provisions of the act. Section 3.

[5] It is clear that the petitioner, a maternal niece of the decedent, is not specifically identified in the above list of succession. Even her mother, who is a sister of the decedent, is not specifically listed. However, the same section of the law provides for a right of representation in the decedent's surviving sister and therefore to the petitioner.

"The real and personal property of an intestate shall devolve in equal, undivided shares to all members of the first class enumerated in this

Section in which there is at least one living member at the time of the death of the intestate. A class shall be deemed to have living members if there is at least one living decendant to a predeceased class member; PROVIDED that in the event that any member of the class has predeceased the intestate, the share of the real and personal property which would have gone to that member had he not predeceased the intestate, shall devolve upon the descendants of that member by right of representation in accordance with the provisions of this Section." (Emphasis added)

As in this case, the decedent did not have a child. Therefore the estate cannot devolve to the first class. Since there is no child, the estate should be considered to pass to the parents. The parents predeceased the intestate, but have a surviving issue who is the mother of the petitioner. The mother of the petitioner gains the right of succession through her parents by right of representation.

[5] While it is clear to the Court that the surviving successor has other issue, this Court is satisfied that the petitioner's petition has been subject to public notice for a period of 20 days, during which time no adverse claim was filed against her petition. Further, there is on file a written conveyance of right by the surviving sister, Farita Syne, assigning her right in the proceeds of the estate to the petitioner.

Accordingly, it is ORDERED, ADJUDGED and DECREED:

1. The petitioner, Marko Johnny, succeeds to the ownership of Bank of Guam Savings Account No. 0209-067483.

2. The petitioner, Marko Johnny, succeeds to the rights in the benefit of War Claims No. 1408.


	POHNPEI LAW REPORTS VOL. 3 [3 PN.L.R. 218] IN THE MATTER OF THE ESTATE OF IOSEP LOSA, Deceased MARKO JOHNNY, Petitioner Pohnpei Civil Action No. 185-87 Trial Division of the Pohnpei Supreme Court September 23, 1988 Petition for the appointment of petitioner as successor of intestate who was petitioner's maternal uncle. The petitioner's mother was the only living sibling of the decedent. The decedent had no issue. He purported to devise his estate by an oral will to the petitioner. The petitioner claimed either through the will or by intestate succession. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held (1) that the petitioner's failure to prove that the alleged oral will was declared by the testator in peril of death, and the fact that the declaration was not made before two independent witnesses rendered the will ineffective and therefore it would not be committed to probate; but (2) that under D.L. 4L-155-78 the order of succession to the estate of intestates provided for a right of representation in the decedent's surviving sister and therefore to the petitioner, as the decedent's sister (mother of the petitioner) gained the right of succession through her parents by right of representation. 1. Wills - Oral Wills - Governing Law The execution and effectuation of an oral will is governed by State Law No. 1 L-80-86. 2. Wills - Oral Wills - Requirements An oral will may be made by a person in imminent peril of death, illness or otherwise, and shall be valid only if the testator dies as [3 PN.L.R. 219] a result of the impending peril; it must be declared by the testator before two disinterested witnesses, and submitted for probate within six months after the death of the testator, unless permitted by the Court to be submitted later, for good cause, and may dispose of only personal property, and only to an aggregate value not exceeding five thousand dollars (S.L.1L-80-86, S.6) 3. Intestacy - Distribution of Estates of Intestates - Governing Law The distribution of the estates of persons who die intestate is governed by the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78. 4. Intestacy - Order of Succession to Estates of Intestates The order of succession to the estates of intestates is as follows: 1. to the children of the intestate; 2. if there be none, to the parents of the intestate; 3. if there be none, to the grand-parents of the intestate; 4. if there be none, to the great grand-parents of the intestate; 5. and so forth, ad infinitum, in accordance with the provisions of the act. (D.L. No. 4L-155-78, Section 3) 5. Intestacy - Order of Succession to Estate of Intestate Where the only surviving sister of intestate without issue has through their parents a right of succession by representation under the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78, the petitioner, a daughter of the decedent's sister, acquires through her mother the right of representation, where other issue of the decedent's sister after formal public notice make no adverse claim, and a written conveyance by the surviving sister assigns her right in the proceeds of the estate to the petitioner. [3 PN.L.R. 220] Counsel for Petitioner: Erwine H. Nanpei Trial Counselor Micronesian Legal Services Corporation JUDAH C. JOHNNY, Associate Justice. This matter came specially, before me on May 13, 1988, for hearing on the petition of Marko Johnny, who was present with counsel the Micronesian Legal Services Corporation by Erwine H. Nanpei. This matter seeks appointment of the petitioner as successor of decedent losep Losa to his estate. The petition is granted on the following facts and conclusion. Facts 1. The petitioner is a citizen of the Federated States of Micronesia, resident of the State of Pohnpei, Sokehs Municipality. 2. losep Losa was a citizen of the Federated States of Micronesia, resident of the State of Pohnpei, Sokehs Municipality. He died intestate on August 7,1987. He was without issue. He was [3 PN.L.R. 221] the natural brother of the mother of the petitioner. The petitioner's mother is the only living sibling of the decedent. She is a citizen of the Federated States of Micronesia, resident of Pohnpei State. 3. The estate of the decedent consists of the following: a. Bank Account No. 029-067483 at the Bank of Guam, in the amount of $170.78, or less. b. Balance of War Claims No. 1408-H in the approximate amount of $2,000.00. 4. The decedent purported to devise his estate by will to the petitioner, but such act did not comply with the law of wills in Pohnpei State. Conclusions of Law [1-2] The petitioner based her entitlement to the estate initially by way of an oral will. The execution and effectuation of an oral will is governed by State Law No. 1 L-80-86. Section 6 of the law provides in brief, that such will may be considered only if made by a person in imminent peril of death, illness or otherwise, and shall be valid only if the testator dies as a result of the impending peril. [3 PN.L.R. 222] It must be declared by the testator before two disinterested witnesses, and submitted for probate within six months after death of the testator, unless permitted by the Court to be submitted later, for good cause. Such will may dispose of only personal property, and only to an aggregate value not exceeding five thousand dollars. The petitioner could not prove that such alleged will was declared in peril of death. It was alleged to have been made to the petitioner and her husband. While the husband may be a disinterested witness, the petitioner is an interested witness. I found this avenue of the petitioner's claim inadequate and for that matter did not commit the alleged will to probate. [3] The other route by which the petitioner brings her claim to the estate is intestate succession. The distribution of the estates of persons who die without a will is governed by the Pohnpei State Intestate Succession Act of 1977, D.L. No. 4L-155-78. This Court in numerous prior cases, distributed estates under the Act. See the following cases: In re: The Estate of Nelen Ioanis/Nelen Karel, PCA No. 40-85 (1985); The Estate of Uriel Eliam. PCA No. 55-85 [3 PN.L.R. 223] (1985); The Estate of Katalino Actouka, PCA No. 126-85 (1985); The Estate of Kanti Salomon, PCA No. 128-85 (1985) The Estate of Peterihno Johnny, PCA No. 133-85 (1985); The Estate of Gorman Booth, PCA No. 146-85 (1985); The Estate of Kapus James PCA No.152-85 (1985) The Estate of Deruko Lingati PCA No. 156A-85 (1985); The Estate of Ishmael Edward, PCA No. 183-85 (1986); The Estate of Pertin Edgar, PCA No. 194-85 (1985); The Estate of Elizabeth Panuelo, PCA No. 216-85 (1986); The Estate of Baby George, PCA No. 217-85 (1986); The Estate of Martani Lipai, PCA No. 2-86 (1986); The Estate of Antreas Lewis, PCA No. 6-86 (1986); PCA No. 6-86 (1986); The Estate of Sarapin Lorens, PCA No. 10-86 (1986); The Estate of Nihkolaus John, PCA No. 12-86 (1986); The Estate of Kasinto Sersi (Kasindo Sercy), PCA No. 27-86 (1986; The Estate of Jesse Edwards, PCA No. 37-86 (1986); The Estate of Carl Danis, PCA No. 42-86 (1986); The Estate of Robert Lucios, PCA No. 59-86 (1986); The Estate of Kiosi Hespak, PCA No. 73-86 (1986); The Estate of Elianter Edward, PCA No. 90-86(1986); The Estate of [3 PN.L.R. 224] Kedes Agripa, PCA No. 113A-86 (1986); The Estate of Strik Yoma, PCA No. 145-86 (1987); The Estate of Alper Obet (Alber Opet) PCA No. 160-86 (1986); PCA No. 160-86 (1986); The Estate of Albert Sarapio, PCA No. 24-87 (1987) The Estate of Welter Daniel, PCA No. 27-87 (1987); The Estate of Justina Weirlangt; PCA No. 60-87 (1987); The Estate of Akileus Amor, PCA No. 74-87 (1987); The Estate of Alpert Dadius, PCA No. 8387 (1987); The Estate of Nichima Orlando, PCA No. 112-87 (1987); PCA No.112-87 (1987); The Estate of Istaro Haritos, PCA No. 131-87 (1987); The Estate of Albert Henry, PCA No. 156-87 (1987); The Estate of Masao Mack, PCA No. 189-87 (1987); The Estate of Estaban Elias, PCA No. 208-87 (1988); The Estate of Bethwel Meninzor, PCA No. 218-87 (1988); The Estate of Ainiris loakim, PCA No. 1-88 (1988); The Estate of Ichiro Benjamin, PCA No. 17-88, (1988); The Estate of Wetner Nelper, PCA No. 18-88 (1988); The Estate of Sam Lipai, PCA No. 55-88 (1988); and The Estate of Luis Polly, PCA No. 91-88 (1988). [4] It is shown from the findings that the decedent died intestate, and without issue. The known survivor is a sister who is the [3 PN.L.R. 225] mother of the petitioner. Under D.L. No. 4L-155-78, the order of succession to the estates of intestates is as follows: 1. To the children of the intestate; 2. If there be none, to the parents of the intestate; 3. If there be none, to the grand-parents of the intestate; 4. If there be none, to the great grand-parents of the intestate; 5. And so forth, ad infinitum, in accordance with the provisions of the act. Section 3. [5] It is clear that the petitioner, a maternal niece of the decedent, is not specifically identified in the above list of succession. Even her mother, who is a sister of the decedent, is not specifically listed. However, the same section of the law provides for a right of representation in the decedent's surviving sister and therefore to the petitioner. "The real and personal property of an intestate shall devolve in equal, undivided shares to all members of the first class enumerated in this [3 PN.L.R. 226] Section in which there is at least one living member at the time of the death of the intestate. A class shall be deemed to have living members if there is at least one living decendant to a predeceased class member; PROVIDED that in the event that any member of the class has predeceased the intestate, the share of the real and personal property which would have gone to that member had he not predeceased the intestate, shall devolve upon the descendants of that member by right of representation in accordance with the provisions of this Section." (Emphasis added) As in this case, the decedent did not have a child. Therefore the estate cannot devolve to the first class. Since there is no child, the estate should be considered to pass to the parents. The parents predeceased the intestate, but have a surviving issue who is the mother of the petitioner. The mother of the petitioner gains the right of succession through her parents by right of representation. [3 PN.L.R. 227] [5] While it is clear to the Court that the surviving successor has other issue, this Court is satisfied that the petitioner's petition has been subject to public notice for a period of 20 days, during which time no adverse claim was filed against her petition. Further, there is on file a written conveyance of right by the surviving sister, Farita Syne, assigning her right in the proceeds of the estate to the petitioner. Accordingly, it is ORDERED, ADJUDGED and DECREED: 1. The petitioner, Marko Johnny, succeeds to the ownership of Bank of Guam Savings Account No. 0209-067483. 2. The petitioner, Marko Johnny, succeeds to the rights in the benefit of War Claims No. 1408.