KOSRAE STATE COURT TRIAL DIVISION

Cite as George v. Abraham, 14 FSM Intrm. 102 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 102]

SCHALLER A. GEORGE,

Plaintiff,

vs.

CLIFTON M. ABRAHAM,

Defendant.

CIVIL ACTION NO. 119-04

MEMORANDUM OF DECISION; ORDER TO STAY PROCEEDINGS; ORDER OF REMAND

Yosiwo P. George

Chief Justice

Trial: August 12, October 14, November 30, 2005

Decided: February 21, 2006

APPEARANCES:

For the Plaintiff:   Snyder H. Simon, trial counselor

                               P.O. Box 1017

                               Tofol, Kosrae   FM   96944

For the Defendant:   Sasaki L. George, Esq.

                                      Micronesian Legal Services Corporation

                                      P.O. Box 38

                                      Tofol, Kosrae   FM   96944

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HEADNOTES

Domestic Relations ) Probate; Property ) Registered Land

    Upon the undisputed owner’s death, title to land transfers pursuant to a valid will to the devisees specified in the will, or if there is no valid will, to the owner’s heirs, according to intestate succession.

[14 FSM Intrm. 103]

George v. Abraham, 14 FSM Intrm. 102, 106 (Kos. S. Ct. Tr. 2006).

Property ) Registered Land

    Before noting a transfer of interest in a parcel, the Land Commission was required to determine that the document of transfer was in proper form, including a correct description of the parcel and for a transfer of a portion of a parcel, the Land Commission may require that the certificate holder have the transferred portion be surveyed at his expense. George v. Abraham, 14 FSM Intrm. 102, 106 (Kos. S. Ct. Tr. 2006).

Property ) Gifts

    Gifts inter vivos, during the life of the owner, must be fully and completely executed. In other words, there must be 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. George v. Abraham, 14 FSM Intrm. 102, 106 (Kos. S. Ct. Tr. 2006).

Property ) Gifts; Property ) Registered Land

    When the certificate holder and owner, did not complete or submit any document of transfer for the subject portion of the parcel to the defendant and he did not survey or arrange for the survey of the subject portion of the parcel claimed by the defendant, there was no compliance with the statutory provisions governing a transfer of interest in land or transfer of interest in a portion of parcel by the certificate holder, and therefore, pursuant to state law, there was no gift of land made from the certificate holder to the defendant. George v. Abraham, 14 FSM Intrm. 102, 107 (Kos. S. Ct. Tr. 2006).

Property ) Registered Land

    Certificates of Title must show all interests in the land except for with rights of way, taxes due and lease or use rights of less than one year. George v. Abraham, 14 FSM Intrm. 102, 107 (Kos. S. Ct. Tr. 2006).

Property ) Registered Land

    When the owner did not execute nor record any lease for a portion of the parcel in the defendant’s favor, any lease granted to the defendant in excess of one year did not comply with law as it was not recorded on the certificate of title, and since legal recognition of a grant of a permanent land use right also requires written documentation to be executed by the grantor, there was no permanent land use right granted by the owner in the defendant’s favor. George v. Abraham, 14 FSM Intrm. 102, 107 (Kos. S. Ct. Tr. 2006).

Domestic Relations ) Probate

    In Kosrae, an oral will is valid only if made by a person in imminent peril of death, whether from illness or otherwise, and if 1) the testator dies as a result of the peril and 2) the testator declares it to be his will before two disinterested witnesses and the court receives the will for probate within six months following the testator’s death unless for good cause the court permits it to be submitted later. An oral will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars. George v. Abraham, 14 FSM Intrm. 102, 107-08 (Kos. S. Ct. Tr. 2006).

Domestic Relations ) Probate

    In Kosrae, an oral will neither revokes nor changes an existing written will. George v. Abraham, 14 FSM Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Property ) Personal

    Personal property is property other than land or interests in land. George v. Abraham, 14 FSM

[14 FSM Intrm. 104]

Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Domestic Relations ) Probate

    In Kosrae, real property, including land, may not be disposed of by oral will. George v. Abraham, 14 FSM Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Property ) Registered Land

    Since the Land Commission is required to make a determination of lawful devisees or heirs and their respective interests following a hearing, when the Land Commission did not hold any hearing to determine the devisees or heirs and their interests following the owner’s death, and when the Registrar’s personal evaluation of the owner’s oral will and determination of its validity was contrary to law, it is therefore vacated and the certificate of title issued based upon the invalid oral will is therefore also invalid. George v. Abraham, 14 FSM Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Property

    A person may only transfer such title to land as that person lawfully possesses. If the seller had no authority to sell property, plainly the buyer acquired no title to the property. Mere possession is not probative of title, because one in possession acquired no better title than his seller. George v. Abraham, 14 FSM Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Property ) Deeds; Property ) Registered Land

    When a certificate of title was never issued to Tulpe Alokoa for parcel 006-K-07 and she was never determined by a Land Commission proceeding to be the title holder of that parcel and therefore could not transfer title to land that she did not own, her deed of gift was invalid, and should have been rejected for filing by the Land Commission. George v. Abraham, 14 FSM Intrm. 102, 108 (Kos. S. Ct. Tr. 2006).

Property ) Deeds

    A deed of gift that only described the gifted land as a "portion of 006-K-07" with no description of boundaries, no reference to a map or drawing of the portion, and no designation of the area of the portion on the deed of gift, is defective due to its failure to adequately describe or identify the affected land because a deed, to be valid, must describe or otherwise identify the land affected. George v. Abraham, 14 FSM Intrm. 102, 108-09 (Kos. S. Ct. Tr. 2006).

Torts ) Trespass

    A trespass action is one for violation of possession. George v. Abraham, 14 FSM Intrm. 102, 109 (Kos. S. Ct. Tr. 2006).

Torts ) Trespass

    A trespass action will be stayed when the court cannot determine which person or persons have right to possession of the land until Land Court proceedings have determined the heirs of the deceased certificate of tile holder. George v. Abraham, 14 FSM Intrm. 102, 109 (Kos. S. Ct. Tr. 2006).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

    This matter was called for trial on August 12, 2005 and continued on October 14, 2005 and November 30, 2005. Plaintiff was represented by Snyder Simon. Sasaki George, MLSC, appeared for

[14 FSM Intrm. 105]

the Defendant. At the trial, the following witnesses testified for the Plaintiff: Grant Jonas, Stain George, Fred Skilling, Schaller A. George, Ricky A. George, Rosin A. George, and Dina F. Abraham. The following witnesses testified for the Defendant: Clifton Abraham, Lillian Abraham, Kiosy Nena, Semeon Mike, Alokoa Sigrah and Likiak Talley.

    The Amended Complaint filed by the Plaintiff on December 22, 2004 specifies a single cause of action against the Defendant: trespass. The cause of action of trespass pertains to a 541 square meter

portion of parcel 006-K-07, known as Kenyeir, in Lelu Municipality. Plaintiff seeks declaratory relief, injunctive relief, damages, fees and costs. This cause of action was tried and defended at trial. After completion of the trial, I ordered that closing arguments be submitted in writing by the parties. Plaintiff’s closing argument was filed on December 12, 2005, Defendant’s filed on December 22, 2005. This memorandum of decision sets for my decision and reasoning.

I.   Finding of Facts.

    Based upon the evidence presented at the trial, I find the following facts. The Plaintiff’s father, Alokoa George, is the first titled owner of parcel 006-K-07, also known as Kenyeir, located in Lelu Municipality, Kosrae State. The Determination of Ownership for parcel 006-K-07 was issued to Alokoa George on August 6, 1973. The Determination of Ownership became final without appeal and the Certificate of Title for parcel 006-K-07, in the area of 3,514 square meters, more or less, was issued to Alokoa George on February 17, 1976.

    Alokoa George passed away on April 7, 1992. Before his death, in approximately 1989, Alokoa George and the Defendant made an oral agreement whereby Defendant would use a portion of parcel 006-K-07. Alokoa’s son, Ricky, was present during these discussions. It was agreed that the Defendant would be permitted lease a portion of parcel 006-K-07 for his use. Alokoa, Ricky and Clifton went to the site and placed monuments to designate the subject area, which was later determined to consist of approximately 541 square meters. It was agreed that Defendant would pay Alokoa George a rental fee of $50 for use of the 541 square meter portion of the parcel. Alokoa conditioned the use of the subject area upon payment of the rental fee by Defendant.

    The Defendant never paid the rental fee to Alokoa. Defendant testified that the subject portion of parcel 006-K-07 was a gift made to him by Alokoa George. The Defendant and his family has occupied and used the 541 square meter portion of parcel 006-K-07 since 1989. The subject area is currently being used by the Defendant and his family for a cookhouse and pigpen.

    Before his death, Alokoa George made an oral will in 1991. The oral will was recorded on cassette tape and later transcribed. The recorded the statements of Alokoa George were later transcribed by Dina Abraham. This oral will of Alokoa George purported to give Plaintiff ownership and administration of his land after his death.

    After Alokoa George’s death on April 7, 1992, the Kosrae State Land Commission conducted a survey of parcel 006-K-07 and the subject 541 square meter portion of the parcel, claimed by Defendant. It is unclear who requested the survey and subdivision of the 541 square meter portion of the parcel. However, the Defendant was employed at the Kosrae State Land Commission during this period of time. The subdivision proceedings were not completed at this time and new Certificates of Title were not issued for the land designated for subdivision.

    Tulpe A. George, surviving spouse of Alokoa George, executed a Deed of Gift on April 9, 1997. The Deed of Gift purported to gift a portion of parcel 006-K-07 to Defendant. The Deed of Gift was signed by Tulpe A. George, the Defendant and witnessed by Ricky George, Stain George and Gibson

[14 FSM Intrm. 106]

George, three sons of Alokoa George. Ricky, Stain and Gibson witnessed and signed the Deed of Gift with the understanding that the Deed was required documentation for a Farmer’s Home loan for the Defendant. The house purportedly financed by the Farmer’s Home loan was never built by Defendant.

    The Deed of Gift executed by Tulpe A. George was registered at the Kosrae State Land Commission on April 10, 1997. The Deed of Gift did not specify the parcel designations for the subdivided portions. The Deed of Gift did not specify any area for the gifted portion of parcel 006-K-07. Sometime in 1997, the

subdivision plat was prepared by the Kosrae State Land Commission. The subdivision plat was based upon the 1992 survey of the subject portion of parcel 006-K-07. The subdivision plat designated the subdivided portion as new parcel 006-K-29 However, new Certificates of Title were never issued for the subdivided parcels.

    Tulpe A. George passed away in 2002. After her death, Plaintiff presented the transcribed oral will of Alokoa George to the Registrar of the Kosrae Land Court. The Registrar determined that the oral will was valid to transfer title of parcel 006-K-07 to the Plaintiff. This determination was made by the Registrar without any notice to other heirs or any other interested persons, or any further proceedings to determine the validity of the oral will. The Registrar then issued a new Certificate of Title on March 29, 2004 to Plaintiff, in his individual name, as fee simple owner or parcel 006-K-07, with an area of 3,514 square meters, more or less.

    Shortly after issuance of the new Certificate of Title to the Plaintiff, the Plaintiff requested that Defendant vacate the subject area, on several occasions, in writing. Defendant refused to vacate the subject area and this lawsuit followed.

II.   Conclusions of Law.

    Alokoa George is the undisputed owner of parcel 006-K-07 from the time of issuance of the Certificate of Title in 1973 until his death in 1992. Upon his death, title to parcel 006-K-07 transfers pursuant to a valid will to the devisees specified in the will, or if there is no valid will, to his heirs, according to intestate succession. Therefore, the claims of ownership by Plaintiff to the portion of parcel 006-K-07 and the validity of oral will created by Alokoa George must be addressed, as well as the Deed of Gift executed by his surviving spouse, Tulpe George. Each is discussed in turn below.

A.  Transfer of Portion of Parcel 006-K-07 from Alokoa George to Clifton Abraham.

    Alokoa George, fee owner of parcel 006-K-07, permitted Defendant to use a portion of parcel 006-K-07. This agreement was made in 1989, and was therefore governed by former law, Kosrae State Code, Title 11, Chapter 6 (repealed). Defendant claims that a portion of parcel 006-K-07 was given to him as a gift by Alokoa George. Plaintiff claims that a verbal agreement was made for the lease of the portion to Defendant, and was not a gift of land. The statutory requirements for the gift of land were not satisfied. The statutory requirements for the lease of land were also not satisfied.

    Former Kosrae State Code, Section 11.617 governed the registry and transfer of title prior to January 2002. Section 11.617(5) required that before noting a transfer of interest in a parcel, the Land Commission was required to determine that the document of transfer was in proper form, including a correct description of the parcel. Section 11.617(7) further specified that for a transfer of a portion of a parcel, the Land Commission may require that the certificate holder have the transferred portion be surveyed at his expense.

    Gifts inter vivos, during the life of the owner, must be fully and completely executed. In other words, there must be donative intent to transfer title to the property, a delivery by the donor, and an

[14 FSM Intrm. 107]

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 (Kos. S. Ct. Tr. 1999).

    It is undisputed that Alokoa George, the certificate holder and owner, did not complete or submit any document of transfer for the subject portion of the parcel to Defendant. It is also undisputed that Alokoa George did not survey or arrange for the survey of the subject portion of the parcel claimed by the Defendant. There was no compliance with the statutory provisions governing a transfer of interest in land or transfer of interest in a portion of parcel by the certificate holder, Alokoa George. Therefore, pursuant to

State Law, there was no gift of land made from Alokoa George to the Defendant. Alokoa George did not gift any portion of parcel 006-K-07 to the Defendant.

    Former Kosrae State Code, Section 11.619 governed the effect of failure to record a lease which exceeded more than one year. It is undisputed that Alokoa George did not execute nor record any lease for a portion of parcel 006-K-07 in favor the Defendant. Certificates of Title must show all interests in the land except for with rights of way, taxes due and lease or use rights of less than one year. UNK Wholesale, Inc. v. Robinson, 11 FSM Intrm 361 (Chk. 2003); Small v. Roosevelt, Innocenti, Bruce & Crisostomo, 10 FSM Intrm. 367 (Chk. 2001). Therefore, any lease granted by Alokoa George to the Defendant in excess of one year did not comply with law, as it was not recorded on the Certificate of Title.

    Legal recognition of a grant of a permanent land use right also requires written documentation to be executed by the grantor. Robert v. Semuda, 11 FSM Intrm. 165 (Kos. S. Ct. Tr. 2002) (Permanent land use right provided by written document executed by grantor). It is undisputed that Alokoa George did not execute nor record any permanent land use right in favor of the Defendant. Consequently, there was no permanent land use right granted by Alokoa George in favor of the Defendant.

    Pursuant to State Law, Alokoa George did not execute a valid gift of land to Defendant. Pursuant to State Law, Alokoa George did not execute a valid lease of land longer than one year with Defendant. Finally, there was no permanent land use right granted to the Defendant by Alokoa George. Defendant’s possession and use of that portion of parcel 006-K-07 from 1989 to 1992 was made with permission by Alokoa George. As there was no valid gift, lease or permanent land use right granted by Alokoa George to Defendant, the permission granted by Alokoa George for use of the subject portion by Defendant was valid during the life of Alokoa George and necessarily expired with the passing of Alokoa George.

B.  Oral Will of Alokoa George.

    Alokoa George made an oral will before his death in 1992. Alokoa George made verbal statements in presence of witness Fred N. Skilling and were recorded on cassette tapes. Court reporter Dina Abraham later transcribed the oral will made by Alokoa George.

    The making and effect of wills are governed by Kosrae State Code, Title 16, Chapter 2. Kosrae State Code, Section 16.204 governs the validity of oral wills as follows:

Section 16.204. Oral will. An oral will is valid only if made by a person in imminent peril of death, whether from illness or otherwise, and if:

(1)  The testator dies as a result of the peril.

(2)  The testator declares it to be his will before two disinterested witnesses and the Court

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    receives the will for probate within six months following the testator’s death unless for good cause the Court permits it to be submitted later.

    An oral will may dispose of personal property only and to an aggregate value not exceeding one thousand dollars. An oral will neither revokes nor changes an existing written will.

    Pursuant to Section 16.204, an oral will may only dispose of personal property only. Personal property is property other than land or interests in land. House of Travel v. Neth, 7 FSM Intrm 228 (Pon. 1995) (emphasis added). Therefore, real property, including land, may not be disposed of by oral will. The oral will made by Alokoa George, as recorded by Dina Abraham, is invalid as to any and all disposition of real property, including land.

    The Registrar’s determination of the validity of the oral will of Alokoa George was made in violation of law. Former Kosrae State Code, Section 11.617(11) required the Kosrae State Land Commission to make a determination of lawful devisees or heirs and their respective interests following a hearing. The Land Commission did not hold any hearing to determine the devisees or heirs and their interests, following the death of Alokoa George. The Registrar’s personal evaluation of the oral will of Alokoa George and determination of its validity was contrary to law and is therefore vacated. The Certificate of Title issued to Plaintiff, based upon the invalid oral will, is therefore also invalid. The Certificate of Title issued to Plaintiff on March 29, 2004 is held null and void, and is therefore vacated. All determinations and adjudications of heirship for parcel 006-K-07 shall be made in accordance with law and the KLCRP Rule 9, as set forth below.

C.  Deed of Gift Executed by Tulpe George.

Tulpe George, surviving spouse of Alokoa George, executed a Deed of Gift in favor of the Defendant for a portion of parcel 006-K-07. The Deed of Gift is invalid on two grounds: Tulpe George was not the owner of the parcel and the Deed did not accurately describe the subject portion purported gifted to Defendant.

     A person may only transfer such title to land as that person lawfully possesses. Muritok v. William, 8 FSM Intrm. 574 (Chk. S. Ct. Tr. 1998); Anton v. Heirs of Shrew, 10 FSM Intrm. 162 (Kos. S. Ct. Tr. 2001). If the seller had no authority to sell property, plainly the buyer acquired no title to the property. Mere possession is not probative of title, because one in possession acquired no better title than his seller. Id. Tulpe George, as surviving spouse, is an heir of Alokoa George. KLCRP Rule 4.11. However, Tulpe’s interests in land owned by Alokoa George were speculative only, as there was no heirship proceeding or adjudication held by the Land Commission to determine the heirs and their interests, as required by former Kosrae State Code, Section 11.617(11). A Certificate of Title was never issued to Tulpe Alokoa for parcel 006-K-07. Tulpe Alokoa was never determined by Land Commission proceeding to be the title holder of parcel 006-K-07, and therefore could not transfer title to land that she did not own. Therefore, Deed of Gift was invalid, and should have been rejected for filing by the Land Commission, pursuant to former Kosrae State Code, Section 11.617(5).

      The Deed of Gift is further defective as to the description of the gifted land. The Deed of Gift described the gifted land as a "portion of 006-K-07" only. There is no description of boundaries, no reference to a map or drawing of the portion, and no designation of the area of the portion on the Deed of Gift. A deed, to be valid, must describe or otherwise identify the land affected. William B. Stoebuck & Dale A. Whitman, The Law of Property, Land Descriptions, § 11.2, at 819 (3d ed. 2000). The land subject to the Deed of Gift is described only a "portion of 006-K-07." This reference does not adequately describe or identify the location of the land or area affected. Accordingly, the Deed of Gift

[14 FSM Intrm. 109]

is also defective due to its failure to adequately describe or identify the affected land.

      Despite these defects, the Deed of Gift was accepted for filing at the Land Commission. The Land Commission failed to comply with former Section 11.617(5), by accepting a document of transfer, the Deed of Gift, which was not in proper form. The Deed of Gift was invalid and has no affect on title to parcel 006-K-07.

III.   Order to Stay Proceedings.

    A trespass action is one for violation of possession. Shrew v. Killin, 10 FSM Intrm. 672 (Kos. S. Ct. Tr 2002). As there has been no heirship proceedings completed to determine the heirs of Alokoa George and interests held in parcel 006-K-07, this Court cannot determine which person or persons have right to possession of the parcel, and therefore cannot conclude this matter. Accordingly, the proceedings in this matter are stayed pending completion of Kosrae Land Court proceedings to determine the heirs of Alokoa

George and those who hold an interest in parcel 006-K-07. Following completion of the Kosrae Land Court proceedings to determine heirship and interests held in parcel 006-K-07, further action will be taken by this Court as necessary.

IV.   Order of Remand to Kosrae Land Court

    This matter is remanded to the Kosrae Land Court for a determination of heirship of Alokoa George and land owned by him, including, but not limited to the interests held in parcel 006-K-07. The proceeding shall be conducted pursuant to KLCRP Rule 9, and shall be completed no later than 90 days following service of this Order. The Determination of Heirship shall also be filed with the Chief Clerk of this Court.

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