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Grundler v Namaduk [1973] NRSC 3; [1969-1982] NLR (B) 92 (8 May 1973)

[1969-1982] NLR (B) 92

IN THE SUPREME COURT OF NAURU

Land Appeals Nos. 14 of 1972 and 8 of 1973

EIDAWAIDI GRUNDLER

v.

EIBARUKEN NAMADUK AND OTHERS

8th May, 1973.

Estate of deceased intestate Nauruan - Administration Order No. 3 of 1938 - meaning of "child" - includes children adopted in accordance with Nauruan custom.

Eid. was adopted by Eig. in accordance with Nauruan custom in about 1912. Eig. died intestate and without natural issue in 1938. The Nauru Lands Committee considered that "child" in Administration Order No. 3 of 1938 did not include an adopted child and, therefore, decided that Eid. was not entitled to succeed to Eig.'s estate and that it should pass to the descendants of Eig.'s brother.

Held: "Child", in Administration Order No. 3 of 1938, includes an adopted child. Eid. was entitled to succeed to the estate of her adoptive mother, Eig.

B. Dowiyogo for the Appellant
1st respondent in person
A. Atam for the other respondents

Thompson C.J.:

These appeals both concern the distribution of the remaining portions of land comprising the estate of Eigugina, who died in 1938. The Nauru Lands Committee has published in Gazettes Nos. 28 of 1972 and 5 of 1973 its decisions that all the remaining portions of land or, where Eigugina shared any of them, her shares in them had become the property of the first respondent, Eibaruken, as to one half share, and of the remaining respondents, who are the widow and children of Deingoa, as to the other half share divided between them.

Deingoa was the great-grandson of Eigugina's full brother. Eibaruken is the granddaughter of the same brother. Eigugina did not bear any children. The appellant claims to be her adopted child and as such to be the only person entitled to succeed to her estate on her intestacy. The respondents say that Eidawaidi was not the adopted child of Eigugina. The Nauru Lands Committee apparently was satisfied that she was Eugigina's adopted child but considered that in 1938 adopted children did not have the same rights as natural children to succeed to the estates of their adoptive parents. It is not disputed that, if the appellant is not entitled to succeed to the estate of Eigugina, the decision of the Nauru Lands Committee is correct. Eibaruken and Deingoa were the issue of Eigugina's brother; Deingoa survived her. So that, if the appellant was not entitled to her estate, it passed to Eibaruken and the person through whom the other respondents claim to be entitled to it.

The appellant gave evidence of having been adopted and brought up by Eigugina and gave the reasons for her adoption. A witness, Ketner Karuru, called on her behalf gave corroborative evidence that she lived with Eigugina as her adopted child. The witness himself was an adopted child, knew the appellant's parents and understood the nature of customary adoption. He appeared to be truthful and I am satisfied from his evidence that the appellant was adopted by Eigugina in about 1912 in accordance with Nauruan custom and was brought up by her.

Mr. Atam, representing the widow and children of Deingoa, suggested that the adoption should have been gazetted. It appears that after 1921 some adoptions were registered. There is no reason to believe, however, that there was any provision for gazettal or other recording of adoptions before then. The absence of any formal record of the adoption does not, therefore, tend to rebut the evidence of the appellant and the witness Ketner Karuru, nor or does it invalidate the adoption. I find as fact that the appellant was the adopted child of Eigugina and lived with her until her marriage.

The question which remains to be determined is one of customary law. Mr. Depaune, a member of the Nauru Lands Committee, has given evidence that it is the Committee's belief that persons adopted by Nauruan custom did not automatically have the same rights as natural children to succeed to the estates of their adoptive parents. Against that evidence Mr. Dowiyogo, who represented the appellant, tendered an account of Nauruan customs relating to adoption written by an anthropologist, Miss C. Wedgewood, in 1936. Miss Wedgewood wrote that adopted children became full members of their adoptive families with the same rights of succession as the natural children of that family and indeed were often given preferential treatment.

At the time when Eigugina died, Administration Order No. 3 of 1938 was in force. In the absence of a family agreement the estate of a person who had died intestate had to pass to that person's children. Mr. Depaune has stated that the Nauru Lands Committee consider that that expression refers only to natural children and not to adopted children. Some support for this view is given by the fact that in 1939 the Lands Committee did not immediately award the estate to the appellant. However, it is not disputed that the appellant had been absent from Nauru with her husband in Ocean Island, at the time of Eigugina's last illness and death. From what Chief Denea, himself a son of one of Eigugina's sisters, stated it appears that the family thought that some consideration should be given to those of the family who had visited her in hospital and comforted her. It seems likely that what Denea, and the Lands Committee, hoped to achieve was a family agreement. Under Administration Order No. 3 of 1938 if there had been an agreement, the estate would have passed in accordance with that agreement. Probably Denea and the Lands Committee considered that the appellant had a moral obligation to agree to the persons concerned sharing in the estate. As she would not agree, the meeting was inconclusive. Probably the Lands Committee hoped that in time she would change her mind. In the circumstances, therefore, I do not consider that the failure of the Lands Committee in 1939 to award the whole estate to the appellant as Eigugina's child is evidence that, as an adopted child, she was not entitled to the estate to the same extent as a natural child in default of a family agreement to the contrary.

Having regard to the account of Nauruan custom given by Miss Wedgewood, I am satisfied that in Administration Order No. 3 of 1938 the expression "child" must be taken to have included in 1939 a child who was recognised as adopted under Nauruan custom. The appellant is, therefore, entitled to succeed to Eigugina's estate in priority to the respondents. The persons to whom the appellant may have owed a moral obligation in 1939 because of their kindness to Eigugina are now themselves dead without issue. There is no good reason, therefore, moral or legal, why the appellant should not take the whole of the balance of Eigugina's estate not previously determined.

Her appeal is allowed. The decisions of the Lands Committee in respect of all the portions of land specified in Gazettes Nos. 28 of 1972 and 5 of 1973 as part of the estate of Eigugina are set aside and the appellant is substituted for the respondents as the present sole owner of all those portions or, where Eigugina owned only a share of any of them, of her share of them.