FSM 6 Intrm. 365-393

Where the rule of primogeniture was not in effect when the land was individually acquired in 1903, was never fully in effect at any time, was largely ignored by the Japanese when the land was passed by will contrary to primogeniture, and has been repudiated by the state government, and where the person who would have inherited if primogeniture had applied never made that claim, and where primogeniture appears contrary to custom, the court must conclude that primogeniture never applied to the land in question. Etscheit v. Adams, 6 FSM Intrm. 365, 381-82 (Pon. 1994).

This is a complex land partition case involving the claims of two factions of the Etscheit family to land holdings in Pohnpei State.1 Each side advances theories under which they contend they are entitled to all, or nearly all, of the Etscheit family's land in Pohnpei, as well as an array of other theories that they argue entitle them to greater or lesser portions of the land. The plaintiffs and defendants have filed motions for summary judgment and the plaintiffs have also filed a motion to dismiss counterclaims. At the hearing on the motions on February 15, 1994, counsel for both sides presented oral argument and urged the Court to simplify the litigation by disposing of at least some of the issues at this stage. After reviewing the motions thoroughly and considering the arguments of the parties, the Court has concluded that each side is entitled to judgment regarding a number of the claims.

The parties are making claims regarding the following land, all in Pohnpei State: parcels 046-A-01, 046-A-02, 046-A-03, and 046-A-04, in Nett Municipality; Sapwetik Island; and fifteen acres on Taketik Island that are described in the settlement agreement between the Etscheits, the State of Pohnpei, and the FSM government. The certificates of title for parcels 01, 02, and 04 are in the name of "The legal heirs of Florentine Etscheit," and the title certificate for parcel 03 is in the name of "Yvette Etscheit Adams and Renee Etscheit Varner." A determination of ownership was issued to "the Etscheit family" for Sapwetik, but no certificate of title has been issued. The settlement agreement regarding the 15 acres on Taketik declares that "[t]itle to the property shall be in the name of Robert Etscheit, Yvette Etscheit Adams, and Renee Etscheit Varner, with their respective interests to be determined by stipulation of the grantees or by judgment by a court of competent jurisdiction." Defs.' Second Motion For Summary Judgment, Ex. F at 4 (Jan. 19, 1994).

Dominique Etscheit was the first member of the Etscheit family to own land in what is now the State of Pohnpei and all of the family's claims to the land described above, with the arguable exception of 046-A-01, devolve in one way or another from the land purchase he made in 1903 at a public auction held by the German Government. Dominique and Florentine, his wife, both European born, had five children ) Leo (the oldest), Carlos, Camille, Ella, and, Robert. Only Carlos and Robert had children of their own. Carlos' children are Yvette, Monique, and Renee. Robert's children are Robert Jr., Jost, and Nicole.

heir" to the land and stated that she had the right to "dispose freely and unrestrictedly of [the] entire estate." The will also stated that when Florentine died, "all property then still in existence" was to be distributed among the five children, with Camille getting two shares because he was blind. Previously, in 1919, the Japanese government had confiscated the Etscheit lands. Although the lands were returned to the family, this did not occur until after Dominique's death, when, in 1927, the Japanese government transferred the property to "the bereaved family of `Dominic Etscheit' on behalf of `Flore Etscheit,' Attorney-in-fact Mr. Carlos Etscheit." Pls.' First Motion for Summary Judgment, Ex. K.

During World War II the Japanese government once again confiscated the Etscheit land, this time through a "forced sale." After the war, the Trust Territory government determined "that the purported sales of the Etscheit properties to the Japanese Government in 1940-41 were forced sales made under duress and therefore invalid." See Defs.' Opp'n to Pls.' Motion for Summary Judgment, Ex. F (Memorandum of Understanding) (Sept. 14, 1956). A memorandum of understanding entered ("MOU") into between the Trust Territory government and Florentine Etscheit2 on September 14, 1956, stated that the properties of Dominique Etscheit "were left to the widow as sole heir," and therefore "Carlos and Leo were without authority to execute valid sales of the properties to the Japanese." Id. The MOU stated that the lands would be "released" to Carlos on behalf of Florentine, and on February 14, 1957, the Trust Territory government issued deeds stating that "certain lands now owned by the Government, were transferred" to "Florentine Etscheit." Pls.' First Motion for Summary Judgment, Ex. C. The "certain lands" covered by the three deeds were described as "1250 acres more or less3 in Mpomp, Ponape Island," the "Island of Japutik," (now spelled "Sapwetik"), and the "Island of Taketik." Id. On October 1, 1956 (after the MOU was issued, but before the deeds were), Florentine executed a quitclaim deed that purported to transfer all the Etscheit land to "Leo, Carlos, Ella, Camille and Robert." Defs.' Opp'n to the Pls.' First Motion for Summary Judgment, Attach. E. The quitclaim deed did not specify in what proportions the land was to be distributed to the children.

In 1968, over a decade after Florentine executed the quitclaim deed, Carlos brought an action in Trust Territory High Court, seeking partition of the family's lands and, apparently, asking for a larger share than the other children as compensation for his greater efforts regarding reacquisition and development of the land. Pls.' Reply to Opp'n to Pls.' First Motion for Summary Judgment, Ex. A (Answer in Pohnpei State Action No. 343). The answer in the state court action, which was signed by both Leo and Robert Sr., took the position that the partition of the land should be controlled by Dominique's will and Florentine's 1956 quitclaim deed, and that Carlos was therefore entitled to no more than a 1/6 share of the land. Id. In 1970, the Trust Territory court issued a decision stating that parcel 046-A-03 was owned by Carlos in fee simple under the 1935 deed from Florentine of 30 hectares, and that that parcel was therefore not subject to partition.

portion of the Etscheit lands. For example, in January of 1979 he allegedly obtained "transfers" from Camille, Ella, and Robert Sr. in which they stated that all their interests in 046-A-02, 046-A-04, Sapwetik and Taketik were transferred to Robert Jr. Robert Jr. also claims to have obtained, on March 1, 1980, an "assignment of expectancy" from Robert Sr., under which Robert Sr. transferred to Robert Jr. any interests he had in inheritance from Leo. The defendants challenge the authenticity of the assignment document, but on November 14, 1988, the Pohnpei Supreme Court approved the assignment of expectancy in the probate proceedings regarding Leo's will. Counsel for the defendants claims that the defendants were unaware of the hearing on the assignment, but the probate decision states that public notice of the hearing was made for two weeks preceding it.

Negotiations directed at resolving the court action were ongoing, but apparently became particularly productive in March of 1982. Indeed, the defendants, Yvette and Renee, claim that a family settlement of the land dispute was reached between the parties on March 12th, 1982, but the plaintiffs deny this. It is not disputed that a map of the Etscheit land claim in Nett was used at the meeting and that certain marks indicating boundaries were drawn on it, as well as the words "sketch approved subject to survey 3/12/82 6:00 PM." The map was not signed by any of the parties. The defendants characterize this as an agreement regarding boundaries, but according to Robert Jr. it merely represented a proposal made by the Carlos faction.

The parties agree that neither side ever had the requisite survey done and that serious problems developed regarding the previously discussed boundaries shortly after March 12. The plaintiffs have submitted an affidavit in which Robert Jr. states that much of the map is drawn inaccurately and to his disadvantage, and that he required the survey as a condition to further discussion of the division proposed by the defendants out of concern for precisely those sorts of problems. See Pls.' Amended Opp'n to Defs.' Second Motion for Summary Judgment, Ex. 14 (Aff. Robert Etscheit Jr.) paras.14-20 (Apr. 2, 1991). Neither side ever sought to dismiss the pending state court action on the basis of a 1982 "settlement." That action continued pending for ten years until December of 1992 when the parties voluntarily dismissed it, stating that after "23 years" of litigation the state court action had "become so complex and confused and costly to the parties that they have jointly determined that dismissal without prejudice is in their best interest in order to permit a resolution of their disputes to occur with a fresh start." Stipulation of Dismissal of PCA No. 343, para. 4.

March 20, 1990, the appellate division of this Court held that the judge in the state court action, Edwel Santos, had a nondiscretionary duty to step aside because he had previously represented the interests of Robert Etscheit Jr. in litigation involving the same land that was involved in the partition action. See Etscheit v. Santos, 5 FSM Intrm. 35, 44-45 (App. 1991). After the Appellate Division's decision was issued, Judge Santos, on April 11, 1990, remanded the state court action to the Land Commission. Robert Jr. moved to dismiss the Land Commission proceeding on May 2, 1991. Subsequently, on December 4, 1992, the parties stipulated to a dismissal of the state court action, and, that same day, filed the instant action with this Court.

The plaintiffs' position in their summary judgment motion, reduced to its essentials, is as follows. The German colonial government undertook massive land reforms on Pohnpei from 1911-14. As part of those reforms standard form German deeds were issued for much of the land on Pohnpei. Those standard form German deeds required that land pass pursuant to the rule of "primogeniture," under which the decedent's oldest male child inherits all of the decedent's land.4 Under the primogeniture rule as stated on the standard form German deeds it does not matter if the decedent purportedly transferred the land during his lifetime or if, like Dominique, he stated in a written will that the land should be divided differently among his surviving family members. The only exception allowed by the German deeds is that the individual may dispose of his property in a different manner if he obtains advance approval from both the Nanmarki and the Governor.5

The plaintiffs argue that when Dominique Etscheit died in 1925 all of his land passed by primogeniture to his oldest son Leo. When Leo died in October of 1980, he left everything to his brother Robert Sr., who had, in March of that year, assigned his expectancy in Leo's estate to his son, Robert Jr. Therefore, they say, all the land belongs to Robert Jr. The plaintiffs argue that the same outcome is reached even if Florentine owned the land after Dominique's death. When Florentine died in 1973 she left no will, and the rule of primogeniture governed distributions in the absence of a will until 1978. Therefore, even if Florentine owned the land it passed from her to Leo by intestacy in 1973 and then to Robert Jr. by way of Robert Sr.'s assignment of expectancy when Leo died in 1980.

The defendants, on the other hand, argue that the rule of primogeniture only applied to land held under the standard form German deeds that recited the rule, not to all lands on Pohnpei. They explain that the Germans instituted the land reforms in order to take land held collectively by ethnic Pohnpeians (primarily through the Nanmarki) and give individual Pohnpeians ownership of it. The defendants claim that this land reform had nothing to do with the Etscheit lands which were already owned individually by Dominique, not collectively by the Nanmarki or a clan.

The defendants also challenge the plaintiffs' claim that any land acquired by Leo passes to Robert Jr. under the "assignment of expectancy" that Robert Sr. executed in March of 1980. They argue that when Leo died in October of 1980 his devise of the land to Robert Sr. was invalid because Robert Sr. was not a citizen, and therefore was barred, under FSM Constitution article XIII, section 4, from acquiring land. As a result they claim that Robert Sr. did not acquire any land from Leo that could then be assigned to Robert Jr. Since the 1980 testamentary gift fails, any land Leo has should pass by the normal inheritance rules (intestate succession) in effect then, under which they contend Leo's land would be divided equally among Robert Jr., Renee, and Yvette.

A motion for summary judgment may be granted only if it is clear that there is no genuine issue of material fact and that the moving party must prevail as a matter of law. Bank of Guam v. Island Hardware, Inc., 2 FSM Intrm. 281, 284 (Pon. 1986). In evaluating whether there is a genuine issue of material fact "[t]he facts, and any inferences therefrom, are to be viewed in the light most favorable to the party against whom summary judgment is sought." Id. When the only issues to be decided in a case are issues of law, summary judgment is appropriate. 10A Charles A. Wright et al., Federal Practice and Procedure § 2725, at 79 (1983); 6 James W. Moore et al., Moore's Federal Practice ¶ 56.17[25] (2d ed. 1990).6

The issue of whether the rule of primogeniture that appeared on the German standard form deeds applied to land not held under one of those deeds is a question of law. Under Civil Rule 44.1 this is true even if the question is seen as a determination of "foreign" law. FSM Civ. R. 44.1 ("The court's determination [of foreign law] shall be treated as a ruling on a question of law.") In the past, the Court has resolved issues of custom and tradition, and state law at the motion to dismiss or summary judgment stage. See, e.g., Semens v. Continental Air Lines, Inc., 2 FSM Intrm. 131, 140-41 (Pon. 1985) (in ruling on motions to dismiss and motions for summary judgment the Court concludes that no rules of Micronesian custom or tradition apply).

applicability of the primogeniture rule to the Etscheit land is the question of whether one of the standard form German deeds was ever issued for the land. The defendants argue that one of the standard form German deeds carrying the primogeniture rules was never issued for the Etscheit family's Pohnpei land, and the plaintiffs state that they have no knowledge of whether one of the deeds was issued or not. The record on summary judgment, however, contains no evidence suggesting that such a deed existed and there's no basis for presuming that such a deed existed. Rather than attempt to establish the existence of a standard form German deed, the plaintiffs have relied on the argument that the restrictions stated on those deeds applied to all privately held land in Pohnpei, regardless of whether a deed had been issued. Because the plaintiffs have not raised a material issue regarding the one factual question that might bear on the applicability of the rule of primogeniture, it is appropriate for the Court to decide the rule's applicability at the summary judgment stage.

Neither party has asserted that when Dominique Etscheit purchased the lands in 1903 any primogeniture restrictions were placed on the transferability of that land. The land register entry recording the sale does not state any restrictions and none of the sources cited by the parties suggest that a rule of primogeniture applied to any land in Pohnpei prior to 1911-14. Thus, in order to apply primogeniture to the Etscheit land, as the plaintiffs ask the Court to do, the Court would have to interpret the German land reforms as drastically and retroactively diminishing the pre-existing property rights of Dominique Etscheit. Whereas he acquired property that he could sell for a profit, develop to the exclusion of all others, or pass freely at his death to whomsoever he chose, the German land reforms, if applicable, left him with property that he was prohibited from selling (without approval of the Nanmarki and the Governor), from which he could not exclude other family members, and which he could not dispose of freely at his death. See supra note 4 and accompanying text. Moreover, if the rules on the German deeds applied to the Etscheit land, then it meant, as well, that new obligations were placed on Dominique because of his ownership of the land ) for example, that he had to provide a certain number of days of free labor to the Nanmarki. Id. There is nothing at all written on the standard form German deeds indicating that the German government meant to take the extreme step of applying those restrictions and obligations retroactively to land already held individually.

Moreover, the historical indicators support the view that the German Government itself viewed the land reforms not as a land code of general application, but as applying only to lands that were taken from the Nanmarkis and distributed to ethnic Pohnpeians under the German deeds on which the primogeniture rule was printed. The report by John L. Fischer ("Fischer"),7 upon which both sides rely,8 states that the land reforms were instituted in order to take public land that were held collectively through the Nanmarkis, and put those lands in the hands of individuals who were farming them. 1951 Fischer, supra note 8, at 8-9; 1958 Fischer, supra note 8, at 92-93. Thus the land reforms would not have applied to the Etscheit property, which the parties agree was already

If the primogeniture rule was meant to apply to all land then one would expect that the deeds would have declared that the restrictions were laws of general application, especially considering the drastic curtailment of rights that application of the restrictions would have meant for persons who already owned land individually. The silence of the deeds on this question is deafening. Similarly, the Court expects that if the restrictions were meant to apply to land not held under the standard form deeds, the German government would have printed at least one separately bound code, public law, or pronouncement stating those rules. However, there is no evidence that the restrictions stated on the deeds were ever published in any way except on the deeds.

Other features of the German land deeds suggest that they were meant to apply only to land that those deeds took out of the hands of the Nanmarkis and gave to the persons who were farming them. For example, the deeds contain a provision stating that disobedience to the Nanmarki is punishable the first time by five days of forced labor, the second time by ten days of forced labor and the third time by possible exile. Pls.' First Motion For Summary Judgment, Ex. B para. 11. In addition the deeds state that the Nanmarki is entitled to two days of work a year from the landowner, in addition to small services without remuneration, but he is also required to feed the people. Id. paras. 8, 9. The rules on the deed also provide for a feast in the Nanmarki's honor once a year and require contributions of yams, food and drink. Id. para. 7. These provisions suggest to the Court that the rules on the deeds applied to ethnic Pohnpeians only, and were meant to redefine the relationship between the Nanmarki and his subjects. There is no evidence that the Etscheits were considered bound by any of these provisions or that they were considered subjects of the Nanmarki.9

Another indication of the true reach of the restrictions stated on the German deeds is that while the plaintiffs now claim that Leo inherited all the land under the rule of primogeniture, Leo never made that claim for himself. Indeed, the answer in the state court partition action, which was signed by both Leo and Robert Sr., took the position that the partition of the land was controlled by Dominique's will and Florentine's 1956 quitclaim deed. The claim that the rule of primogeniture was consistently applied to all land in Pohnpei, and that Leo inherited all the land under that rule, is further discredited by Leo's contrary understanding.

Even if the deeds or surrounding circumstances provided some basis for believing that the land reforms were meant to apply to the Etscheit land, interpreting the reforms in that fashion ) i.e., as stripping Dominique and his heirs of many of the rights to his land and requiring forced labor ) might well constitute an unconstitutional deprivation of property and liberty without due process. See FSM Const. art. IV, § 3.10 Generally, when other interpretations of a law are possible this

The Germans' efforts at land reform were interrupted only three years after they began when the Japanese took over control of Pohnpei. The Japanese period lasted until 1945, and it was during that era that Dominique Etscheit died (1925) leaving a written will that named his wife Florentine as his sole heir. It was also during that time that the Etscheit lands were returned to the family (1927) after the first Japanese seizure. The plaintiffs claim that during the entire Japanese period the primogeniture rule stated on the standard form German deeds was consistently and uniformly applied. Even if true, however, this would not mean that the Japanese expanded the application of the rule to include lands, such as those at issue here, which were not held under one of the standard form German deeds. Moreover, contrary to the plaintiffs' claims, the scholarly sources are in near agreement that the Japanese did not strictly and consistently apply the German land reform rules. For example the Fischer study, which is relied on by both sides, states that "[a]ccording to two Ponapeans who worked closely with the Japanese . . . there were detailed written land and inheritance laws which the Japanese applied to native land, ignoring the German deeds." 1951 Fischer, supra note 8, at 11; 1958 Fischer, supra note 8, at 98. Fischer also notes that the Japanese were willing to diverge from the rules on the German deeds even for land held under those deeds "when confronted with specific cases." 1951 Fischer, supra note 8, at 11; 1958 Fischer, supra note 8, at 97. Towards the end of the Japanese era, Fischer states, the Japanese "not only permitted but encouraged the Ponapeans to divide their land," in violation of the rule of primogeniture. 1951 Fischer, supra note 8, at 28.11 Indeed, Fischer states that the inheritance code on the German deeds "never has been fully in effect in all respects." 1951 Fischer, supra note 8, at 10; 1958 Fischer, supra note 8, at 95. This suggests that during the Japanese era the primogeniture restrictions were not even the law with respect to those parcels of land to which the Germans applied the rule, and certainly indicates that the Japanese did not expand the operation of the rule of primogeniture to parcels of land, such as those acquired by Dominique Etscheit, for which the Germans never issued a deed stating the rule.

the Pacific Islands 184, 191 (Ben Acquaye & Ron Crocombe eds. 1984). Similarly, in an essay aptly entitled "Too Many Foreign Precedents," William A. McGrath, former Director of Land Management in the Trust Territory of the Pacific Islands, states that "[u]nlike the Germans, who tried to insist on inheritance by patrilineal primogeniture, the Japanese allowed landowners to use their own discretion in dividing land among the various heirs, or in disposing of it as they thought fit." William A. McGrath & W. Scott Wilson, Too Many Foreign Precedents, in Land Tenure in the Pacific 190, 200 (Ron Crocombe ed. 1987) (emphasis added); see also Gene Ashby, Ponape ) An Island Argosy 114 (1st ed. 1983) (the Japanese "did not strictly enforce the German rule of inheritance through the patrilineal line, but decided land cases on an individual basis"); Richard G. Emerick, Homesteading on Ponape 50 (1960) (unpublished dissertation, University of Pennsylvania) ("[a]pparently the Japanese did not take the German Code very seriously") (Supplemental Authorities In Support Of Pls.' Motion for Summary Judgment, Ex. 1).12

In 1919 the Japanese confiscated the Etscheit land and when they returned the land to the family in 1927 it was issued to "the bereaved family of `Dominic Etscheit' on behalf of `Flore Etscheit', Attorney-in-fact Mr. Carlos Etscheit." The manner in which the land was returned to the family further supports the view that the rule of primogeniture was not expanded to apply to the Etscheit land during the Japanese era. If the Japanese were strictly applying primogeniture to all land, as the plaintiffs claim, then one would have expected them to return the land to Leo Etscheit, the oldest male heir. Certainly, one would not expect them to release the land in the name of Florentine Etscheit who, as a woman, would have no right to inherit any part of the land if the primogeniture rule was widely recognized and controlling.

Finally, if primogeniture applied to the Etscheit land, one would expect that Dominique, the second largest landowner on Pohnpei, would have been sophisticated enough to know this. Under those circumstances he certainly would have sought the approval necessary to effect his wish that the land go to his wife at his death. Approval for such exceptions to primogeniture was apparently given quite freely during the Japanese era, and although the deeds said that approval by both the Nanmarki and the Governor was necessary, the fact was that it was enough to obtain the consent of the Japanese Government surveyors. See, e.g., Ladore v. Cantero, 1 TTR 343, 343-44 (Pon. 1957). However, because the land had been wrongfully confiscated from Dominique by the Japanese, and was not returned until after his death, it was not possible for him to get the Japanese surveyors to approve the transfer. Thus to thwart the transfer Dominique attempted in his last will and testament because he failed to obtain the approval of the Japanese surveyors, would be to magnify and perpetuate the wrong that the Japanese committed by seizing the land in 1919.

There is no reason to believe that during the Trust Territory era (1944-1978) the application of the land reform rules stated on the standard form German deeds was expanded to reach the Etscheit property. Indeed, the indications are to the contrary. In 1956 the Trust Territory returned the land to the Etscheit family, after finding that the Japanese improperly forced the sale of the lands in 1940-41. The memorandum of understanding returning the land states that the widow of Dominique Etscheit was the "sole heir" to the lands and that Leo and Carlos were without authority to sell the land to the Japanese. When the Trust Territory issued deeds for the land in 1957 they stated that the land belonged to "Florentine Etscheit." Thus it is clear that the Trust Territory government did not apply the rule of primogeniture to the Etscheit land because under that rule Florentine could not have inherited the land because she was a woman, and Leo would not only have had authority to sell the land (with the necessary approval), but would have been the only person with that authority.

The plaintiffs cite a number of cases where the Trust Territory court refused to allow an individual to dispose of land contrary to primogeniture. However, in those cases the land was held under the standard form German deeds which stated the rule. See infra this section. The plaintiffs do not cite a single case showing that the Trust Territory court applied the German restrictions to land that was not held under one of the German deeds stating those restrictions, nor do they cite a single decision holding that the German restrictions were rules of general application.13 Indeed where land was held pursuant to Japanese leases, the Trust Territory court specifically said that the rules of inheritance stated on those leases controlled inheritance, and did not apply the German rules on rental14 or inheritance stated on the German deeds. Aknes v. Weli, 1 TTR 323, 324-25 (Pon. 1957). Similarly, interests in land existing under Trust Territory homestead permits were not subject to the restrictions on the German deeds, and could pass at death to female members of the family. See Kehler v. Kehler, 1 TTR 398, 402-03 (Pon. 1958). Therefore, if the plaintiffs believe that the German rules of inheritance apply to the Etscheit land even though one of the deeds stating those rules was never issued, then the same reasoning would dictate that the conflicting rules of inheritance applicable to the Japanese leases (no inheritance allowed) and the Trust Territory homestead permits (land may pass to female family members) should apply, even though neither a

The only reasonable conclusion, is that during the Trust Territory period the restrictions stated in the German deeds, the Japanese leases, and the homestead permits only applied to land held under one of those instruments. Indeed, in those cases where the German restrictions were applied, the Trust Territory court generally made clear that such application resulted from the fact that the land was held under a German deed stating those restrictions, not from the existence of a land code. In Ladore v. Ladore, 1 TTR 22, 23 (Pon. 1952), on which the plaintiffs rely heavily, the Trust Territory court stated that "[s]ince the land in question was held under the standard form of title document issued by the German Government in accordance with its basic reform of land laws in 1912, its inheritance is controlled by the provision stated in this form of title document." (emphasis added). Similarly, in Kehler v. Kehler, 1 TTR at 403-04, the Trust Territory court held that while land held under Japanese leases was controlled by those leases, land held "under the standard form of German Land Title Certificate issued in 1912" was "controlled by the language of this document." In Likaor v. Iriarte, 1 TTR 53, 55 (Pon. 1953) the Trust Territory court again implied that the reason the German restrictions applied to certain land was because the land was held under the German deeds stating those restrictions: "The land in question was held under the system of private ownership set forth in the standard form of German Title document used on Ponape. It was therefore subject to the land law stated in that standard form." (emphasis added). The language in all these decisions suggests that the German restrictions only applied to land held under the German deeds stating those restrictions.15

Moreover, even in those cases where the land was held under the German deeds, the Trust Territory court frequently made exceptions to the restrictions. For example, in Godlieb v. Welten, 1 TTR 175, 179-80 (Pon. 1954), the Trust Territory court gave effect to a family agreement regarding a transfer of land held under German deed, even though the transferee failed to show the approval of the Nanmarki and the Governor, as is required by the German restrictions. See also In re Estate of Seman, 1 P.S. Ct. R. 26 (Tr. 1984) (the Pohnpei state court gave effect to a family agreement dividing the land equally among three daughters, even though the family agreement was contrary to primogeniture).16 In Ladore v. Cantero, 1 TTR 343, 343-44 (Pon. 1957), the court enforced a land

transfer that, prior to the transferor's death, was only consented to by the Japanese Government surveyors, even though the standard form German deed required advance approval of both the Nanmarki and the Governor. Similarly, in Lusama v. Eunpeseun, 1 TTR 249, 253-54 (Pon. 1955), transfer with the approval of the Nanmarki was held sufficient as against all parties but the Government, even though the German deed required the approval of both the Nanmarki and the Governor.

In 1970 the Trust Territory court that was reviewing the partition action filed by Carlos Etscheit gave effect to a 1935 quitclaim deed in which Florentine Etscheit, contrary to primogeniture, gave Carlos 30 hectares on Pohnpei. The state action was later dismissed by agreement of the parties, and thus there was no opportunity for appeal and the 1970 ruling has no res judicata effect. However, the state court's decision regarding the 30 hectare parcel does seriously weaken the plaintiffs' claim that primogeniture was consistently recognized to be the law for all inheritance of Pohnpei land during the Trust Territory era. Clearly, if that were the case the Trust Territory court would have easily concluded that Florentine Etscheit could not give part of the land to Carlos.

Even if one assumes that the Trust Territory government saw the German primogeniture rule as applying to land generally, the Trust Territory government's action in returning the land to Florentine Etscheit (rather than to the oldest son, Leo) and issuing the deeds in her name, took the land outside any restrictions on female ownership. In Kilara v. Alexander, 1 TTR 3, 5 (Pon. 1951) the Trust Territory court stated that "[t]he land law . . . as stated in the standard form of German title document issued in Ponape is still in effect outside of any changes that have been made by the . . . American Authorities since the American Occupation." (emphasis added). Even if the Court believed that the primogeniture rule originally applied, the fact that the American authorities returned the confiscated land to "Florentine Etscheit," can be seen as a change in the applicability of that rule to the Etscheit land.

1 F.S.M.C. 205. That does not help the plaintiffs because, as discussed above, primogeniture was not applied to the Etscheit land in 1941, and, indeed, scholarly sources indicate that in 1941 primogeniture was not being consistently applied by the Japanese even with respect to land that was covered by the German deeds. See supra pp. 376-77. The same goes for the plaintiffs arguments based on 1 TTC 105 and 1 TTC 24 (1966), which were merely the precursors to 1 F.S.M.C. 205.

the rule of primogeniture was the "law of Pohnpei" (and had to be changed) is of little persuasive weight. As we have seen, the history of land tenure rules in Pohnpei is quite complex and the district legislature in 1978 would have had only limited insight into what the German and Japanese officials meant to do in the past. United States courts have frequently recognized that pronouncements by a later legislature concerning the meaning of actions taken by earlier legislatures are unreliable. See, e.g., Williams Natural Gas Co. v. F.E.R.C., 943 F.2d 1320, 1335 (D.C. Cir. 1991); Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1295 (10th Cir. 1990); Colt Indus., Inc. v. United States, 880 F.2d 1311, 1313 (Fed. Cir. 1986). The level of unreliability is even greater when, as here, the later legislative body is part of an entirely different government. Cf. Mackenzie v. Tuuth, 5 FSM Intrm. 78, 82 (Pon. 1991) (weight given to a later Congress' understanding of provision when many of the same elected representatives are involved). Moreover, it is not unfair to understand the legislature to be stating the most pervasive "law" in Pohnpei, and not as addressing those exceptions, such as the Etscheit land, to which primogeniture did not apply.

The German rule of primogeniture appears to be inconsistent with the customary Pohnpeian title system, which not only permitted women to own land, but which was, according to Fischer, "primarily matrilineal." 1951 Fischer, supra note 8, at 5, 1958 Fischer, supra note 8, at 84. Fischer notes: "[Primogeniture] appears to have been chosen on some purely theoretical basis without much study of the social system of the Ponapeans. According to the older Ponapeans the inheritance provisions caused much contention while the society was adjusting to them." 1951 Fischer, supra note 8, at 10; 1958 Fischer, supra note 8, at 95. Given this, the primogeniture provisions on the standard form German deeds should be given narrow application under FSM Constitution article XI, section 11, which states that decisions of this Court should be consistent with local custom. Certainly, this Court will not apply the primogeniture restrictions more broadly than the Germans, Japanese, and Trust Territory governments did. See also supra note 10 and accompanying text.

In addition, the primogeniture provision is discriminatory and inconsistent with basic fairness, and should, under the Equal Protection Clause of the FSM Constitution, art. IV, § 4, be interpreted narrowly for that reason.17 See Ishizawa v. Pohnpei, 2 FSM Intrm. at 76 (where possible, courts should not choose interpretation of provision that brings it into conflict with the Constitution). Primogeniture discriminated against women by allowing only men to inherit, and discriminated against younger male offspring by allowing only the oldest son to inherit. As discussed above, application of the primogeniture rule in this case would also raise due process concerns. For these reasons the primogeniture rule should be given narrow application.

repudiated by the local government, D.L. 4L-155-78 (Pohnpei Intestacy Act of 1978). Even Leo, who the plaintiffs claim inherited all the land under the rule of primogeniture, took the position during his lifetime that the land passed pursuant to his father's will, which provided for the land to be shared. Moreover, the primogeniture rule appears to be inconsistent with Pohnpeian custom as well as the concepts of fundamental fairness embodied in the due process and equal protection clauses of the FSM Constitution. The Court finds that the rule of primogeniture found on the standard form German never applied to the land held by the Etscheit family in Pohnpei State. Therefore, it is appropriate to deny the plaintiffs' motion for summary judgment on the issue of primogeniture, and grant summary judgment to the defendants on this issue.

When Leo died on October 12, 1982, he left a will naming Robert Sr. the sole heir to his lands. Previously, on March 1, 1980, Robert Sr. had allegedly executed an "assignment of expectancy" transferring any interests he had in inheritance from Leo to Robert Jr. On November 14, 1988, the Pohnpei Supreme Court approved the assignment of expectancy. On March 13, 1982, the defendants both executed acknowledgments in which they waived any claims they had against the estate of Leo Etscheit in exchange for a payment of $5000 each.

The plaintiffs argue that under the assignment of expectancy all of Leo's lands now belong to Robert Jr., and that this issue should be disposed of at the summary judgment stage. The defendants raise questions regarding the authenticity of the assignment, and also argue that Robert Sr., a non-citizen, could not inherit any land to "assign" to Robert Jr. See FSM Const. art. XIII, § 4. With respect to the state court decision approving the assignment of expectancy, the defendants argue that they were not properly notified of the proceeding and therefore should not be bound by it. The defendants contend that the acknowledgment waiving any claims against Leo's estate in exchange for a payment of $5000 was part of a larger agreement, which included a partition of the land on March 12th, and that the waivers should not be enforced unless the entire agreement is enforced. Moreover, they state that if the entire agreement is not enforced the agreement fails for lack of consideration because the defendants were entitled to payments of $5000 under Leo's will, and therefore there was no consideration for the promise not to seek anything further from Leo's estate.

The Court concludes that Robert Jr. did not inherit lands from Leo under the assignment of expectancy from Robert Sr. because Robert Sr. himself could not "expect" to inherit land under Leo's will since the FSM Constitution, article XIII, section 4, prohibited noncitizens, including Robert Sr., from acquiring land when Leo died in 1980. Robert Sr. was a vital link in the chain by which Robert Jr. claims to be entitled to Leo's lands, and that vital link is faulty. The plaintiffs argue that, under the assignment of expectancy, the land passes directly from Leo to Robert Jr., thereby bypassing the broken link in the chain. However, the treatise that the plaintiffs themselves rely on to show the viability of the "assignment of expectancy" ) Thomas E. Atkinson, Law of Wills, (2d ed. 1953) (Pls.' Motion To Dismiss Counterclaim, Ex. 16) ) supports the view that the assignor must himself be able to inherit the assigned expectancy from the source in order for his assignment to be effective. Atkinson states that "[t]he assignment has no effect if the assignor predeceases the source." Id. at 729. If, as the plaintiffs contend, the assignment of expectancy meant that the testamentary gift bypassed the assignor and went directly from the source to the assignee at the source's death, then it would be irrelevant whether the assignor predeceased the source. However, Atkinson's view appears to be that if the assignor "link" in the chain is broken, the property does not pass under the assignment. In the instant case the assignor (Robert Sr.) link is broken with respect to Leo's land and therefore the land does not pass from the source (Leo) to the assignee

Similarly, although the plaintiffs claim that the Pohnpei Supreme Court decision of November 14, 1988 (Pls.' Motion For Summary Judgment, Ex. M), approved the assignment "of all real properties of Leo Etscheit to Robert Etscheit, Jr.," that decision actually supports the view that Robert Jr. only acquired title under the expectancy to that inheritance that Robert Sr. himself was qualified to take from Leo. Contrary to the plaintiffs' representation, the Pohnpei Supreme Court decision never approved the assignment of real property from "Leo Etscheit to Robert Etscheit, Jr.," but rather stated only that it was approving the assignment to Robert Jr. of "all claims and expectancy in and to the estate of Leonard Etscheit, which may be acquired by the assignor[, Robert Sr.]" Id. (emphasis added). The decision states, further, that Robert Jr. can exercise the same rights of the inheritance "as the assignor [,Robert Sr.,] might or could do personally." Id. This language leads to the conclusion that the Pohnpei Supreme Court, while approving the assignment of expectancy as a general matter, did not hold that that assignment allowed the plaintiffs to circumvent the broken link in the chain. Therefore, Leo's non-land holdings passed through Robert Sr. to Robert Jr. under the valid assignment of interest, but Leo's land holdings did not.

The plaintiffs argue that issue of whether Robert Sr. was disqualified from inheriting land from Leo is not before the Court because only the government, not private parties, has standing to raise citizenship objections to land title. The Court is unimpressed with this contention. The plaintiffs have filed an action alleging that their claim to certain lands is superior to that of the defendants. In deciding whether the plaintiffs are correct, the Court is duty bound to consider the effect of the constitutional provision regarding citizenship that may determine the nature and limits of the plaintiffs' property right. Under normal rules of standing, where application of the citizenship clause would result in title vesting in a private party, then that private party is the real party in interest empowered to make the claim in court. See FSM Civ. R. 17(a) ("Every action shall be prosecuted in the name of the real party in interest."); see also Aisek v. Foreign Investment Bd., 2 FSM Intrm. 95, 101 (Pon. 1985) (private plaintiffs have standing to challenge issuance of permit as violative of article IX, section 13, of the FSM Constitution where they reasonably allege that such issuance will cause them harm). The Court sees no policy reason, or precedential justification, for diverging from the normal standing rules in the case of the citizenship clause in the Constitution.

It is true that in Muller v. Madison, 5 TTR 471 (Mrsh. 1971), and Acfalle v. Agunon, 2 TTR 133 (Yap 1960), the Trust Territory High Court held that only the government had standing to challenge title to land based on Trust Territory Code provisions, see 57 TTC 201; TTC 900 (1952), that limited the rights of non-citizens to own land. However, no court has ever held that the rule on standing applicable to those Trust Territory provisions should be applied to the entirely separate citizenship clause found in article XIII, section 4 of the FSM Constitution. Moreover, even if the very same citizenship provision was at issue, the Trust Territory rule would not be binding on this Court. Alaphonso v. FSM, 1 FSM Intrm. 209, 213 (App. 1982). The Court might be inclined to give more weight to the Trust Territory rule if the decisions establishing that rule provided a well-reasoned rationale for prohibiting private citizens with a claim to land from raising citizenship objections to another private citizen's claims to the same land. However, Muller provides no explanation for the decision to adopt the rule it does. Instead, the decision relies entirely on the earlier Trust Territory case, Acfalle, which in turn relies on since-deleted language in an American legal encyclopedia. More specifically, Acfalle relies on 2 Am. Jur. Aliens §§ 29, 49, 58 (1936), which correspond with 3A Am. Jur. 2d Aliens and Citizens §§ 2007, 2018 (1986). Unlike their predecessors, sections 2007 and 2018 do not distinguish between the rights of the government and private parties to raise the question of citizenship under provisions limiting the rights of non-

The plaintiffs also claim that the defendants have no standing to challenge the operation of the assignment of expectancy because of the releases both signed on March 13, 1982, waiving any right to claim further inheritance from Leo in exchange for payment of a $5000 gift under Leo's will. It is true that if these waivers are enforceable, the defendants may not take any of Leo's land in this action, despite the Court's ruling on the effect of the assignment of expectancy. The Court finds that there are substantial questions of fact that bear on the enforceability of the releases signed by the defendants. According to the defendants, the releases were part of a larger agreement, which included a compromise regarding the partition of the land reached on March 12, 1982. The Court is mindful of the fact that generally a written contract that, like each of the releases here, is complete on its face, is presumed to embody the final and entire agreement of the parties. 17A Am. Jur. 2d Contracts § 398, at 425 (1991). However, that is only a presumption, and the information presented at this stage leads the Court to conclude that the defendants may be able to present evidence at trial to rebut that presumption. The Court notes in particular: the proximity in time of the March 13th releases and the March 12th settlement discussion; Yvette's statement that the releases were signed "on the basis of the land settlement which had occurred the preceding day," Aff. Yvette Etscheit Adams para. 38 (Defs.' Opp'n To Pls.' Motion For Summary Judgment, Attach. I) (Jan. 17, 1991); and the statement of Martin Mix that he mediated the March 12th meeting and believed that a land settlement had been reached, Aff. Martin Mix (Defs.' Opp'n To Pls.' Motion For Summary Judgment, Attach. I) (Jan. 15, 1991). Thus although the Court holds, as a matter of law, that the assignment of expectancy failed to transfer any land to Robert Jr., the Court also concludes that there are substantial issues of material fact regarding whether the defendants can profit from that failure notwithstanding the waivers they signed.

The defendants' cross motion for summary judgment, filed May 18, 1993, argues that the land acquired by Dominique passed to his wife, Florentine, either by operation of Dominique's written will when he died in 1925, or when the Japanese returned the land to her as a "representative of the family of the bereaved Dominic Etscheit" in 1927. The defendants argue further, that in 1956, after the Trust Territory government recognized that the Etscheit's sale of the land to the Japanese was forced and invalid, Florentine validly transferred the land in her possession to her children, in equal parts, by way of a quitclaim deed.

In opposing the defendants' cross motion for summary judgment the plaintiffs contend, as they do in their own summary judgment motion, that the rule of primogeniture was consistently in force from 1911 to 1960 and that Florentine therefore could not inherit the land in 1925 or 1927. The plaintiffs also argue that even if Florentine possessed the land in 1956 she could not make a lifetime transfer to her children in 1956 for essentially three reasons: 1) the rule of primogeniture still prevented lifetime transfers at that time, although it had been revised to allow transfers by will; 2) the Trust Territory code in effect in 1956 only allowed non-citizens, such as Florentine's children, to acquire land as "heirs or devisees," 57 TTC 201 (1952), and the children were neither; and 3) when Florentine transferred the land, the Trust Territory government, while it had recognized Florentine's right to the land, had not yet given her deeds to the land, and therefore she did not possess the land at the time she executed the quitclaim deed in favor of her children.

The plaintiffs do not dispute the authenticity of Dominique's will. Indeed, as discussed supra, Leo Robert Sr. took the position in the answer filed in the state court action that the will controlled the disposition of the land. The only issue is whether the will is lawful, and that is a purely legal question that it is appropriate to resolve at the summary judgment stage. In addition, the Court's ruling that primogeniture never applied to the Etscheit land eliminates the plaintiffs' legal argument against the validity of the will. Therefore, the Court holds that all of the Etscheit lands passed to Florentine by operation of Dominique's will. Partial summary judgment will therefore be granted to the defendants on this issue.

The Court concludes that Florentine did not validly transfer the land to her children by quitclaim deed in 1956. At that time the Trust Territory code did not allow non-citizens to acquire title to land except as "heirs or devisees." 57 TTC 201.19 Florentine's children were not "heirs" because "heir" means "the person appointed by law to succeed to the estate in case of intestacy." Black's Law Dictionary 651 (5th ed. 1979). This would not apply to any of the children in 1956 because Florentine was alive and none of her children were taking by intestacy. Moreover, the children were not even presumptive heirs when Florentine executed the quitclaim deed in 1956 because at that time there was no intestacy provision applicable to the Etscheit land. The provisions of the German deeds controlled intestacy for land held under one of those deeds, but there appears to have been no intestacy provision covering other land. Therefore, her children could not be "heirs" in the legal sense.20 Florentine's children were not "devisees" because a devisee is someone who takes under the person's will, Black's Law Dictionary 408 (5th ed. 1979), and Florentine was attempting a lifetime transfer. Therefore, the Court will deny the defendants' request for summary judgment regarding the effectiveness of Florentine's 1956 transfer, and will

The plaintiffs' motion to dismiss asks the Court to reject, as a matter of law, the following eight counterclaims: 1) that this dispute was settled in 1982 in an enforceable unwritten agreement between all concerned parties; 2) that in 1935 Florentine conveyed the 30 hectares in Nett comprising tract no. 046-A-03 to her son Carlos, and that that tract is not subject to partition; 3) that defendants are entitled to most of the lands by adverse possession because they were developed solely by Carlos, from 1938 until the late 1970's; 4) that Leo's land should be divided by intestate succession among Renee, Yvette, and Robert Jr. in equal parts; 5) that the plaintiffs lost their interests in the land by developing it in ways that violated the forfeiture provision in a stipulated preliminary injunction entered in the state court case; 6) that the defendants should get a larger portion of the land, or be financially compensated, because of the efforts their father, Carlos, made to preserve and develop the land subject to partition; 7) that tract no. 046-A-01 belonged solely to Carlos, and now to Yvette and Renee, because Carlos and the Japanese built that area out of swampland; and 8) that Yvette, Renee, and Robert Jr. should share equally in the Etscheit land on Taketik Island because ownership of that land was established in 1989 through an agreement that Yvette, Renee, and Robert Jr. entered into with the governments of the FSM and Pohnpei State.

Under FSM Civil Rule 12(b)(6), a motion to dismiss is not to be granted unless it appears to a certainty that the non-moving party is entitled to no relief under any state of facts which could be proved in support of the claim. Panuelo v. Pohnpei, 2 FSM Intrm. 150, 157 n.4 (Pon. 1986). Rule 12(b) provides that "[i]f on a motion [to dismiss for failure to state a claim] matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." In this case the defendants submitted an affidavit and other matters outside the pleadings in opposition to the motion to dismiss.

The plaintiffs seek dismissal of the defendants' counterclaim regarding a settlement that was allegedly reached by the family on March 12, 1982, but subsequently repudiated by Robert Jr. The plaintiffs argue that the claim based on the agreement is barred because it is covered by the 6-year statute of limitations, 6 F.S.M.C. 805,22 and the defendants did not raise the claim until 1991, or at the earliest until the second amended complaint dated July 13, 1988.23 The plaintiffs state

The defendants reply that the claim based on the 1982 agreement is timely because the applicable statute of limitations for actions involving land is 20 years. Under 6 F.S.M.C. 802 "actions for the recovery of land or any interest therein," are timely if commenced within 20 years. The defendants also claim that even under the 6-year statute of limitations the action is timely because, while the agreement was repudiated in August of 1982, it was not actually breached until 1986, when one of the plaintiffs took action contrary to the 1982 agreement. Moreover, the defendants state that breach of the contract was actually raised in an amended complaint in the state court action in July of 1988. Therefore, they argue, even if the claim arose when the contract was repudiated in August of 1982, they still alleged it within six years.

The defendants contend that the statue of frauds is inapplicable to the land partition agreement at issue here because the statute only applies to agreements for the sale of an interest in land and partition is not a sale. The defendants also argue that the plaintiffs should not be allowed to assert the statute of frauds because the plaintiffs' oral agreement regarding division of the land on March 12th induced the defendants to waive their claims against the estate of Leo Etscheit on March 13th, and to partially perform the contract. Finally, with respect to the plaintiffs' argument that evidence of the 1982 settlement is inadmissible pursuant to FSM Evidence Rule 408, the defendants note that that rule only bars evidence of offers of compromise and settlement negotiations, not of a final settlement.

Pursuant to Rule 12(b), the Court will treat the motion to dismiss the counterclaim based on the alleged partition agreement as a motion for summary judgment because the defendants have submitted many matters beyond the pleadings regarding this issue, including: two affidavits, alleged diary entries, copies of maps, and a copy of a letter written by an attorney who attended the March 12th meeting. See Defs.' Opp'n to the Pls.' Motion to Dismiss Counterclaims, Attachs. Tab A. In addition, the defendants have now filed a second motion for summary judgment, which seeks judgment on the issue of the alleged agreement. Although that second motion for summary judgment is not technically a subject of this decision, the Court will consider all the evidence submitted with it on the issue of the alleged agreement.

boundaries were approved "subject to survey." It is undisputed that this survey was never performed. Therefore, a condition precedent to enforcement of the contract was never satisfied and the contract is not binding. "[W]here the parties to a proposed contract have agreed that the contract is not to be effective or binding until certain conditions are performed or occur, no binding contract will arise until the conditions specified have occurred or been performed." 17A Am. Jur. 2d Contracts § 34, at 62 (1991); see also Semens v. Continental Air Lines, Inc. (I), 2 FSM Intrm. 131, 142 (Pon. 1985) (common law decisions of the United States are an appropriate source of guidance for this court for contract issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition within the Federated States of Micronesia).

Furthermore, in order to be binding "an agreement must be definite and certain as to its terms and requirements; it must identify the subject matter and spell out the essential commitments and agreements with respect thereto." 17A Am. Jur. 2d Contracts § 192, at 202 (1991). The most important element of the alleged partition agreement is the location of the boundaries. Because the survey was never completed, those boundaries were never identified with the level of certainty to which the parties, even under the defendants' version of events, had agreed was necessary to finalize the agreement. Therefore, the agreement is insufficiently "definite and certain" as to that essential element, and is not binding.

Moreover, while the Court does not reach the statute of frauds question presented, the Court does note that it would have expected that any final agreement involving partition of such a large land holding would have been reduced to formal written form. This is doubly true given that the agreement involved a matter in active litigation and the settlement meeting was attended by counsel. Similarly, it is inconceivable that if a final agreement had indeed been reached regarding partition, one of the parties would not have moved to dismiss the state partition action on that basis. However, the state court action continued for ten years. The plaintiffs' are entitled to summary judgment on the defendants' counterclaim based on the alleged partition agreement.

The defendants claim that in 1935 Florentine conveyed 30 hectares in Nett (tract no. 046-A-03) by deed to Carlos and that this land is his alone, and not subject to partition. Based on the 1935 deed the Trust Territory court issued an order in 1970 in the partition action awarding this land to Carlos and Carlos used that order to obtain a certificate of title from the Land Commission. Later, in 1978, Carlos conveyed the land to his daughters Yvette and Renee. The plaintiffs raise a number of arguments in their motion to dismiss this counterclaim. They claim that the certificate of title is invalid because it was obtained by using a non-final court order, which was extinguished by the new trial order issued in the state case. In addition, they state that Florentine could not convey the land to Carlos because the land belonged to Leo under primogeniture. Plaintiffs also claim that when the Japanese confiscated the land in 1941, that invalidated the prior transfer to Carlos. Plaintiffs claim further that Carlos, by seeking return of the family lands as a representative of the family, waived the right to claim any of the lands for himself. Similarly, the plaintiffs claim that Carlos lost any special claim to the 30 hectares when he "acquiesced" in Florentine's 1956 deed conveying the entire 1250 acre estate to her children. The plaintiffs also raise questions regarding the authenticity of the 1935 quitclaim deed itself.

1935 by deed. At a minimum, then, the defendants must be allowed to prove that the 30 hectare parcel was conveyed to Carlos by quitclaim deed in 1935. With respect to the forced sale to the Japanese ) given that the sale was found by the Trust Territory government to be invalid, the Court is not persuaded by the plaintiffs' argument that such sale extinguished any pre-existing rights. In addition, the Court rejects the plaintiffs' argument that because Carlos acted as a representative of the family to obtain the return of the lands following World War II, he waived any special claims that he might have to a particular portion of the land. It is clear that the Trust Territory government gave the land to the family following World War II based on the family's ownership prior to the seizure, and therefore it follows that the Trust Territory's action was intended to restore the pre-existing ownership arrangement. Finally, the Court rejects the plaintiffs' argument that because Carlos seeks to take a share of the lands under the 1956 quitclaim in which Florentine conveyed 1250 acres to all her children, that means that he waived any pre-existing rights to a particular parcel of land. Rather if Carlos already owned a portion of the 1250 acres that would simply mean that Florentine's transfer was invalid to the extent that she attempted to transfer that which she did not own.

Despite the above, it would not be appropriate for the Court to grant summary judgment to the defendants on this claim. The plaintiffs have challenged the authenticity of the documents which purportedly effected the transfer of the 30 hectare plot from Florentine to Carlos in 1935. See Pls.' Reply To Opp'n To Pls.' First Motion For Summary Judgment at 38-39; Pls.' Opp'n To Defs.' Second Motion For Summary Judgment at 20-22. The plaintiffs claim for example that the deed was written in a language ) English ) that Florentine did not understand, and that there is evidence of tampering. Viewing these allegations, and the supporting evidence, in the light most favorable to the plaintiffs the Court finds that there is a issue of fact regarding the authenticity of the 1935 deed and that both sides should be allowed an opportunity to present evidence on this issue.

The defendants claim that they are entitled to fee simple ownership of Sapwetik and most of the lands subject to partition under a claim of adverse possession pursuant to 6 TTC 302 because Carlos adversely possessed the land from 1936 until 1976. Adverse possession is a doctrine under which one can acquire ownership of land if he, without the owner's permission, uses the land openly, notoriously, exclusively, continuously and under claim of right, and the owner does not challenge such action until after the statute of limitations has run. Iriarte v. Anton, 2 P.S. Ct. R. 8, 13 (Tr. 1986). In this case the statute of limitations is 20 years. The plaintiffs state that since the statute of limitations provision that provides the underpinnings for adverse possession on Pohnpei, 6 TTC 302, did not go into effect until May 28, 1951, the 20-year period of unchallenged possession necessary to make out this claim cannot be met unless the plaintiffs did not challenge the defendants' possession until after May 28, 1971. They cite a number of Trust Territory court decisions that have reached that conclusion ) Kanser v. Pitor, 2 TTR 481, 487 (Truk 1963), Oneitam v. Suain, 4 TTR 62, 70 (Truk 1968). Because the plaintiffs challenged the defendants' possession in a court pleading filed on April 11, 1969 (Pls.' Reply To Defs.' Opp'n To Motion To Dismiss, Ex. M), the 20-year period cannot be met.

Plaintiffs also argue that adverse possession is not fully recognized in Pohnpei and should not be applied here. They cite a recent Pohnpei Supreme Court decision, Pohnpei Public Lands Board of Trustees v. Yeneres, PCA No. 31-90, Order (Mar. 3, 1992) (Pls.' Motion To Dismiss, Attach. 15), in which the court explained that adverse possession "has not yet really become part of the law" because of the different rules of ownership existing through the various administrations

The defendants acknowledge that under the Trust Territory precedents like Kanser and Oneitam they cannot show the twenty years of adverse possession necessary to establish their claim. However, they argue that this Court should overturn the rule established in those cases. This Court concludes, however, that the decisions in Kanser and Oneitam are sound. For adverse possession to be shown the statute of limitations under which a challenge to possession can be made must have expired. In Pohnpei State there was no statute of limitations for such actions until 1951 and, therefore, any period of adverse possession could only begin to run in 1951. If this Court believed that the Trust Territory Court's rule caused inequities we might be persuaded to reconsider that rule. However, the Court believes that, to the contrary, the defendants' rule is the inequitable one. Under the defendants' rule landowners who, in keeping with Pohnpeian custom, see Pohnpei Public Lands Bd. of Trustees v. Yeneres, PCA No. 31-90, Order (Pon. Sup. Ct. Mar. 3, 1992), did not object to others making use of their land for living or farming could be penalized by having their land taken from them, even if during most of the period there was no way of knowing that such generosity could be used against them. Applying the Trust Territory rule, which is informed by a reading of Yeneres, the Court concludes that since the plaintiffs challenged Carlos' possession by April of 1969 at the latest, it is not possible that the defendants could show the twenty-year period necessary to a claim of adverse possession. Therefore, even under the facts alleged by the defendants this claim fails and dismissal is proper.

There is a second reason for concluding that the adverse possession claim must fail. Under the Pohnpei Supreme Court's holding in Iriarte v. Anton, a claim of adverse possession is not made out among family members unless the party claiming adverse possession shows that the owner made a "clear disclaimer or disavowal" of right to the land. 2 P.S. Ct. R. at 13. The defendants have not alleged any facts showing that the plaintiffs have made a "clear disclaimer or disavowal" of right to the land. Therefore, the plaintiffs are entitled to judgment on this issue as a matter of law.

This claim is based on a stipulated preliminary injunction signed by the parties on May 26, 1989, as part of the state court action (PCA No. 343). Under that stipulated preliminary injunction, development of the land was strictly limited. The penalty stated in the injunction for "unilateral termination" of the agreement was that the terminating party "waives forever any and all claims whatsoever to all the land." Pls.' Motion to Dismiss, Ex. 19 (Stipulated Preliminary Injunction) para. 11. The injunction stated that it would "remain in full force and effect until such time as the land is finally divided between the Parties." Id. para. 8. According to the defendants, the plaintiffs have engaged in development activities that violate the terms of the agreement.

The plaintiffs state that the stipulated preliminary injunction has no effect because it was ordered by Justice Santos in the state court action, and the appellate division of the FSM Supreme Court subsequently held, in Etscheit v. Santos, 5 FSM Intrm. 35 (App. 1991), that Justice Santos was disqualified from presiding. The plaintiffs also argue that the stipulated preliminary injunction is not enforceable because the parties later agreed to dismiss the state court action without prejudice. According to the plaintiffs the preliminary injunction, although stipulated to, should not be considered a "contract" with force apart from Justice Santos' order because Justice Santos forced the parties to create the stipulated preliminary injunction. Lastly, the plaintiffs note that a different alleged violation of the stipulated preliminary injunction in this case was already the subject of a decision by Justice Santos in the state case, and that he held that the forfeiture provision in the injunction was void because it was against Pohnpeian custom. See Defs.' Motion To Dismiss Counterclaims, Ex. 19.

The Court agrees that as an order of the state court the preliminary injunction is void due to Justice Santos' disqualification and the stipulated dismissal of the state court action. However, it is still possible that the stipulated preliminary injunction, which was signed by both parties, can be viewed as a contract that would have force independent of Justice Santos' authority. There are factual questions that would have to be answered before the Court could decide whether to view the stipulated preliminary injunction as an enforceable contract. For example, does the agreement represent the will of the parties or did Justice Santos require them to agree to it? Did the parties believe that they were terminating the stipulated preliminary injunction when they jointly moved to dismiss the state court action? Did the plaintiffs breach the stipulated injunction so fundamentally that such breach constituted a "unilateral termination" of the contract?

The Court is not persuaded by the plaintiffs' argument that the matter can be dismissed because Justice Santos already found the forfeiture provision to be unenforceable. First, this argument flies in the face of the plaintiffs' own argument that all of Justice Santos' orders are void due to his disqualification. Moreover, the plaintiffs are reading Justice Santos' decision on the stipulated preliminary injunction too broadly. All that that decision said is that the forfeiture provision does not apply where there's a minor/trivial breach ) in that case a fence was built crooked rather than straight as agreed. The state court said, however, that it was "inclined to adopt an approach that draws a line between fundamental and trivial breaches." Therefore, a more fundamental breach could still trigger the penalty described in the stipulated preliminary injunction. In light of the factual questions remaining, the Court cannot at this time dispose of the defendants'

The doctrine of "unjust enrichment" is widely recognized in the United States, but the defendants neither cite any FSM cases adopting the doctrine nor provide any compelling reason why this Court would want to adopt that doctrine. Assuming this Court wanted to adopt the doctrine of unjust enrichment, this is not an appropriate case for doing so. Generally, the doctrine refers to the situation where someone takes part performance under contract that is void for impossibility, illegality, mistake, fraud, or some other reason. In those circumstances even though there is no enforceable contract the doctrine requires the individual to either return what has been received under the contract or pay the other party for it. Here there was no contract between Carlos and other family members suggesting that Carlos would be reimbursed for expenses incurred in securing the return of the family's land.

The doctrine of unjust enrichment has also been expanded to cover cases where there is an "implied contract." 66 Am. Jur. 2d Restitution and Implied Contracts § 3 (1973). In the instant case, however, there is no allegation that the plaintiffs ever asked Carlos to make any efforts on their behalf or suggested in any way that they would compensate him for doing so. "A benefit officiously thrust upon one is not considered an unjust enrichment and restitution is denied in such cases." 5 Samuel Williston, A Treatise on the Law of Contracts § 1480, at 4133-34 (rev. ed. 1937).

Moreover, the unjust enrichment doctrine is based on the idea that "one person should not be permitted unjustly to enrich himself at the expense of another." 66 Am. Jur. 2d Restitution and Implied Contracts § 3, at 945 (1973) (emphasis added). However, Carlos' efforts to reclaim the family land were necessary in order for him to preserve any claim he personally had to that land. There is no evidence that he expended additional efforts on the plaintiffs' behalf beyond what he had to do to protect his own interests. In other words, there is no allegation that the benefit to the plaintiffs came at Carlos' expense, as is required for application of the unjust enrichment doctrine. Therefore, even if this Court wished to adopt an expansive version of the unjust enrichment doctrine that extended as far as cases where there was no implied or explicit contract, the defendants still have not alleged facts that would make out a claim of unjust enrichment.

The Court wishes to express its respect for Carlos' accomplishment in successfully reclaiming the land that had been wrongfully confiscated. It took a great deal of courage to persevere and prevail over the adversities Carlos faced. It comes as no surprise to the Court that the defendants feel that Carlos' efforts should be somehow compensated. Unfortunately, the law does not support allowing the claim based on unjust enrichment to go forward. The plaintiffs will be granted judgment as a matter of law regarding the defendants' unjust enrichment claim.

The defendants identify no legal theory, doctrine or precedent entitling one to attain title to submerged lands by filling them in. On that basis alone this claim should be dismissed. The only authority that either side has raised for any claim to 046-A-01 is that the Land Commission issued a certificate of title in the name of the "Legal Heirs of Florentine Etscheit." Therefore, at best the defendants can claim a proportionate share of the land as heirs of Florentine Etscheit. The defendants' claim to exclusive ownership of 046-A-01 should be dismissed.

The defendants state that the claim to 15 acres on Taketik Island was "inchoate" prior to 1989. In 1989, Robert Jr., Yvette and Renee settled a claim against the State of Pohnpei which resulted in an agreement that transferred 15 acres on the island to them. The defendants argue that because the land was returned at a time when the other family members, being non-citizens, could not acquire a share, the land should be divided in thirds, with Robert Jr., Yvette and Renee each receiving a third. The plaintiffs respond that the land on Taketik was reclaimed solely through Robert Jr.'s efforts, and that the entire 15 acres should therefore be awarded to the plaintiffs on the basis of quasi-contract and quantum meruit.

The defendants cite no authority for their view that because the Etscheits' ownership of the Taketik land was re-established later than the rest of the land acquired by Dominique, Dominique's or Florentine's disposition regarding that land is void. Because the defendants have given the court no legal basis for treating this land differently than the bulk of the Etscheit land claim, the land on Taketik should pass with the rest of the land. Therefore, the counterclaim regarding Taketik Island is dismissed.

1. The plaintiffs' motion for summary judgment is denied to the extent that it seeks a ruling that the primogeniture rules applied to the Etscheit lands. Instead the Court rules, as a matter of law, that the primogeniture rules never applied to the land held by the Etscheit family in Pohnpei. The plaintiffs' motion for summary judgment is also denied to the extent that it seeks a ruling that all of Leo's land passed to Robert Jr. pursuant to the assignment of expectancy executed by Robert Sr. Instead the Court rules, as a matter of law, that the assignment of expectancy, although valid, did not transfer any of Leo's land to Robert Jr. The defendants will be allowed an opportunity to show that the releases they signed waiving any further claims they had to inheritance from Leo were part of larger agreement involving partition of the land.

3. The plaintiffs' motion to dismiss counterclaims is granted in part. The defendants' counterclaims based on the alleged 1982 family agreement, adverse possession, and unjust enrichment are all rejected as a matter of law. Also rejected, as a matter of law, are the defendants' counterclaims relating specifically to parcel 046-A-01 and Taketik island. The plaintiffs' motion to dismiss is denied with respect to the counterclaim that the defendants own parcel 046-A-03 in fee simple, the counterclaim based on intestate succession, and the counterclaim based on the plaintiffs' alleged breach of a stipulated preliminary injunction.

6. The Court is not confined to merely deciding whether primogeniture does apply as a matter of law, but may also decide whether it is inapplicable as a matter of law. Although, the defendants have not explicitly made the applicability of the primogeniture rule an issue in their cross motion for summary judgment, that question must necessarily be decided in answering the questions that the defendants did state, i.e., whether Florentine obtained title to the land in 1925 or 1927, and whether Florentine validly conveyed the land to her children in 1956. Moreover, even if primogeniture was only raised by the plaintiffs, the Court still could, after considering that motion, decide the issue in the defendants' favor on summary judgment. See 10A Charles A. Wright et al., Federal Practice and Procedure § 2720, at 29-30 (1983) ("the weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under rule 56").

10. There is some question about whether the FSM Constitution is a helpful aid in interpreting provisions that pre-date the Constitution, such as the German primogeniture rule. However, since the Court is being asked at this time to interpret the primogeniture provision, and to do so in a way that will have present day consequences, the Court believes it is proper to consider those principles of fundamental fairness that the FSM Constitution charges the Court with protecting. See Etscheit v. Santos, 5 FSM Intrm. 35, 37 (App. 1991) (the core task of the FSM court is to uphold, among other constitutional rights of the people, the right not to be deprived of property without due process of law).

12. The plaintiffs cite J. David Fine, Legacies of German and Japanese Law and Administration, 12 U. Haw. L. Rev. 321, 333-34 (1990), which states that "Japanese laws merely solidified the land law reforms of 1911." However, that article makes no mention of the primogeniture rule, and appears to be speaking generally of the reforms that took control of the land from the Nanmarkis and placed it in individual hands. Moreover, given that the rules written on the German deeds only applied to land held pursuant to those deeds, then "solidification" of those reforms would not mean that the rules applied to the Etscheit land, which was not held under one of the German deeds containing the restrictions. Finally, the writer of the article describes his findings as "tentative" and based only on the published literature. Id. at 327.

13. The plaintiffs argue that the decision of the Trust Territory Appellate Court in Shoniber v. Shoniber, 5 TTR 532 (App. 1971), stands for the proposition that the rule of primogeniture applies regardless of the existence of a German deed for the land. However, that decision explicitly stated that while the deed there had been lost, the parties agreed that the land was held "under the standard form German Land Deed, No. 304/305." Id. at 533. The situation in Shoniber, then, is entirely different than the instant one. Here it is not merely a case of the standard form German deed for the land being lost, but a case were the land was never held under one of those deeds.

The plaintiffs' citations to Kilement v. Eskalen, 1 TTR 309 (Pon. 1957); Pelitin v. Lorenso, 1 TTR 307 (Pon. 1957) are also unhelpful. All those cases hold is that when land held under a standard German deed is divided, each subdivision is subject to the conditions on the original German deed from which the ownership flows. Those cases says nothing about a case where no German deed was ever issued for the land and where the rights to the land do not devolve from a German deed.

15. The plaintiffs cite to three Trust Territory cases in which the court stated that it was applying the "land law" "set forth" on the German deeds. The plaintiffs argue that this means the primogeniture law was one of general application and printing it on the German deeds was merely the means of publishing a law of general application. See Pls.' Reply to Opp'n to Pls.' First Motion for Summary Judgment at 6-7 (citing Kehler v. Kehler, 1 TTR 613, 614 (App. 1958); Ladore v. Ladore, 1 TTR 22, 23 (Pon. 1952); Kilara v. Alexander, 1 TTR 3, 5 (Pon. 1951)). It is not a necessary implication, however, that because the law was "set forth" on the deeds that then it must be a law of general application. In the those cases, cited by the plaintiffs, where the land was held under one of the German deeds the restrictions were the "law" applicable to the land. In cases where the land was held under a land registry, a Japanese lease or a homestead permit, then different rules were the "law" applicable to the land.

16. At the hearing, counsel for the plaintiffs argued that three things were needed to make exceptions to primogeniture ) consent of the Nanmarki, consent of the Governor and a family agreement ) and that of those three family agreement was probably the most important. This argument, while it helps the plaintiffs to explain the unfavorable decisions in Godlieb and Seman, undermines their contention that the rules stated on the standard form German deeds were strictly enforced. Those deeds make no mention of a family agreement requirement and certainly do not state that the approval of exceptions by the Nanmarki and the Governor is unnecessary when a family agreement is reached.

18. On January 19, 1994, shortly before the hearing on these motions, the defendants filed a second motion for summary judgment. The plaintiffs did not have an opportunity to respond to that second motion before the hearing, and it was not a subject of the hearing or of this decision. Since that time the plaintiffs have filed their response to the second motion for summary judgment. Although the defendants' second motion for summary judgment is not a subject of this hearing, it deals with some of the same issues involved in this decision. Therefore, the Court while not ruling on the January 19th motion, will consider the various attachments and exhibits filed regarding the defendants' second summary judgment motion in reaching its decision with respect to the motions that are the subject of this decision.

21. For reasons already discussed above, the Court rejects the defendants' contention that only the Government, not parties with a private claim to land, can challenge another's ownership of that land on the basis of citizenship. See supra pp. 383-84. The Court also notes that the defendants' themselves take a different view of this where it suits them, raising the issue of Robert Sr.'s citizenship in challenging the assignment of expectancy he executed. See "Assignment of Expectancy" Section in Defs.' Opp'n To Motion To Dismiss Counterclaims.