G.-5.

4

Titles to other portions of the reserve were issued in other ways, at different times, and with varying restrictions. The Kaiapoi Reserve Act, 1910, and the terms of the Commission, refer only to one class of restriction, but I have thought it advisable to inquire into the title of each section <>f the reserve, no matter to what restriction it was subject. It was stated in evidence at the inquiry that the Natives had arranged with Mr. Buller at the meeting held to consider the proposed subdivision of the block that both husbands and wives should be included in the titles, and when, on the distribution of the Crown grants, it was discovered that the names of the women had been omitted, they objected. Thereupon Mr. Buller explained that a mistake had been made, but that it was of no great moment, as the husbands could leave the land to their wives by will, and that this explanation was acoepted by them as a satisfactory answer to their complaint. From this time onwards for many years wills were made without doubi as in their validity— no one ever thought the restrictions would prevent disposition of the land by will. Most of the wills made in early days examined by me contained a devise to the widow or husband of the testator or testatrix. Wills were prepared by Canon Stack, Judges, and other officials of the Native Land Court, and (it is asserted) by one Judge of the Supreme Court, and in fact by all those persons with whom the Maoris came in contact having a knowledge of law and Maori custom, and to whom they would look as persons in authority. Both the Supreme Court aml the Native Land Court granted probates of these -wills without any question, and nothing occurred until comparatively recent years to cause any doubt in the minds of the devisees or next-of-kin that there was any flaw in the titles to lands taken under these wills. It was claimed that when the various Native Land Acts were consolidated by the passing (if the Native. Land Act, 1894. sections 48 and 49 of that Act would seem to the Natives to protect titles derived through wills, and to do away with the necessity of doing more than obtain probate. These sections are as follows : — Section 48. " Excepting as in section forty-six is provided, or where the Court for some special reason may consider it expedient by succession order to give effect to what it considers to be the rial intention of any testator, or to effect a division or distribution amongsi several devisees, m> succession unlcr shall issue in, respect of any land devised." Section 49. " Upon the title under any succession order becoming ascertained the interest of the deceased Native in the land or personal property comprised therein shall be deemed to have vested in the successor as from the date of the death of such deceased Native, but subject in the title /if the executor under the will, or administrator of the estate of the deceased Native." 1 am unable to say in what year the Native Land Court first expressed to the Natives any doubts as to these restrictions allowing disposition by will of the Kaiapoi lands, but it was not until the practice of devising them had been followed for more than twenty years. In 1892, in Mutu v. The Public Trustee (1(1 Sup. Ct. L.R. 200) it was held that by the words " inalienable, by sale, exchange, mortgage, lease, or other disposition. , ' of section 3 of the South Island Native Reserves Act. 1883, the Legislature did not intend to permit alienation by will. Mutu was a Kaiapoi Native, and there can be no doubt many of the Natives heard of this case, and at cases subsequently heard there it was stated in open Court that wills did not operate over the West Coast (South Island) reserve affected by that section. Later, in 1895, it was decided in Mahupuku ». The A.M.P. Society (13 N.Z. L.R. 246) that inalienable land was not devisable. Even then there was no certainty that the particular restrictions on these Kaiapoi grants prevented disposition by will, and the question was brought to a head in the following manner: Mikaera Turangatahi died on or about the 14th March. 1892. By his will, dated the 19th September, 1891. he specifically devised section 31 to Henaie Whakatau Uru. Probate was granted by the Native Land Court on the 9th October, 1893. Notwithstanding the said devise, application was made to the Native Land Court by Hohepa te Rangi. on behalf of himself and others, claiming, according to Native custom, to be appointed successors to the said Mikaera Turangatahi. The application was opposed on behalf of the said Henare \Y. Uru. but the Court held that the devise was inoperative by reason of the restrictions ; and, by order dated the 9th day of June. 1899. appointed the said Hohepa te Rangi and nine others to succeed to the interest of the deceased. From this order the said H. W. Uru appealed. Natives petitioned Parliament in 1899. and representatives of those interested under will- and of those claiming as next-of-kin attended on Mr. Seddon, the Premier, who refused to interfere until the question had been definitely decided by the Supreme Court.