N. E. 77. We concur in that view, assuming, of course, that the height and conditions provided for can be plainly seen to be not unreasonable or inappropriate.

In relation to the discrimination or classification made between the commercial and the residential portion of the city, the state court holds in this case that there is reasonable ground therefor, in the very great value of the land and the demand for space in those parts of Boston where a greater number of buildings are used for the purposes of business or commercially than where the buildings are situated in the residential portion of the city, and where no such reasons exist for high buildings. While so deciding, the court cited, with approval, Com. v. Boston Advertising Co. 188 Mass. 348, 69 L.R.A. 817, 108 Am. St. Rep. 494, 74 N. E. 601, which holds that the police power cannot be exercised for a merely esthetic purpose. The court distinguishes between the two cases, and sustains the present statutes. As to the condition adopted by the commission for permitting the erection, in either of the districts B, that is, the residential portion, of buildings of over 80 feet, but never more than 100, that the width on each and every public street on which the building stands shall be at least one half its height, the court refuses to hold that such condition was entirely for esthetic reasons. The chief justice said: "We conceive that the safety of adjoining buildings, in view of the risk of the falling of walls after a fire, may have entered into the purpose of the commissioners. We are of opinion that the statutes and the orders of the commissioners are constitutional"

We are not prepared to hold that this limitation of 80 to 100 feet, while in fact a discrimination or classification, is so unreasonable that it deprives the owner of the prop erty of its profitable use without justification, and that he is therefore entitled under the Constitution to compensation for such invasion of his rights. The discrimination thus made is, as we think, reasonable, and is justified by the police power.

It might well be supposed that taller buildings in the commercial section of the city might be less dangerous in case of fire than in the residential portion. This court is not familiar with the actual facts, but it may be that, in this limited commercial area, the high buildings are generally of fireproof construction; that the fire engines are more numerous and much closer together than in the residential portion, and that an unlimited supply of salt water can be more readily introduced from the harbor into the pipes, and that few women or children are found there in the davtime, and very few people sleep there at night. And there may, in the

residential part, be more wooden buildings, the fire apparatus may be more widely scattered, and so situated that it would be more difficult to obtain the necessary amount of water, as the residence quarters are more remote from the water front, and that many women and children spend the day in that section, and the opinion is not strained that an undiscovered fire at night might cause great loss of life in a very high apartment house in that district. These are matters which, it must be presumed, were known by the legislature, and whether or not such were the facts was a question, among others, for the legislature to determine. They are asserted as facts in the brief of the counsel for the city of Boston. If they are, it would seem that ample justification is therein found for the passage of the statutes, and that the plaintiff in error is not entitled to compensation for the reasonable interference with his property rights by the statutes. That, in addition to these sufficient facts, considerations of an esthetic nature also entered into the reasons for their passage, would not invalidate them. Under these circumstances there is no unreasonable interference with the rights of property of the plaintiff in error, nor do the statutes deprive him of the equal protection of the laws. The reasons contained in the opinion of the state court are, in our view, sufficient to justify their enactment. The judgment is therefore affirmed.

(214 U. S. 108) KAIMIOLA NAKOOKOO GRAY, Appt.,

1. Concurrent findings of the two lower courts on the question as to what is the correct English translation of a will written in the Hawaiian language will be followed by the Supreme Court of the United States on appeal from the Hawaiian supreme court. Dig. $ 1037; Dec. Dig. § 387.*] [Ed. Note.-For other cases, see Courts, Cent.

WILLS (449*)-PARTIAL INTESTACY.

2. The intention of the testatrix, a leper, residing at the leper settlement at Kalaupa pa, Hawaii, to give to her husband not only the property which she left situated at that place, but also all other property owned by character, clearly appears from a gift to her, wherever situated, and of whatever her husband of "all property known belonging to me and appearing in my name, situate at Kalaupapa," describing it as three horses and a wooden house, and "other houses owned by me, as well as all other property owned by me."

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 965; Dec. Dig. § 449.*]

[No. 174.]

601.

*110

Statement by Mr. Justice Peckham: The appellant herein appeals from the decree of the supreme court of the territory of Hawaii. The facts relating to the case are as follows:

Hikaalani Hobron Noholoa was a resident of the island of Molokai, territory of Hawaii, which is called the leper settlement, and was a leper, about seventy-five years of age, at the time of her death, on or about the 29th of June, 1906. Deceased left a husband, who was also a resident of the settlement and a leper, and a niece, the appellant, Kaimiola Nakookoo Gray, also residing on the island, and two grandnieces, being minors, residing in Honolulu. She left a will written in the Hawaiian language, of which the following was taken as a translation by the courts below:

"I, the undersigned, a leper residing at Kalaupapa, island of Molokai, territory of Hawaii, do make this my last will for all property known belonging to me and appearing in my name situate at Kalaupapa aforesaid, with good will (or intention) do hereby bequeath the same as hereinafter described: One gray horse, one bay mare; one black mare; one frame wooden house and other houses owned by me, as well as all other property owned by me, to my husband David Noholoa, residing at Kalaupapa aforesaid, to him and to his heirs, administrators and executors forever. Renouncing all claims that my relatives may set up in law to this."

The above will was duly admitted to probate in the circuit court of the second circuit of

the territory on the 12th day of December, 1906, and, upon petition duly made, the court granted letters of administration with the will annexed to Enoch Johnson, who thereupon received such letters, and entered upon his duties as such administrator.

After the application on the part of the husband for the probate of the will of his wife, and after the filing of the same with the clerk of the circuit court, but before the granting of letters of administration to Enoch Johnson, as prayed for by the husband, a petition was filed with the same court by Kaimiola Nakookoo Gray, the ap

testatrix, in which petition it was averred that the will of the testatrix, which was of fered for probate, did not dispose of any property other than which was within and at the leper settlement, and that the testatrix, at the time of her death, owned other property outside of the settlement, of the assessed value of several thousand dollars, and it was averred that there was no person who could lawfully demand settlement of the people who had possession of the property outside of the settlement, and therefore the petitioner asked for the appointment of some suitable person as administrator of the estate of which decedent died intestate, and that due notice might be given thereof.

Subsequently to the filing of this petition the probate court duly admitted the will as translated by the court to probate, and also denied the petition of the niece for letters of administration upon that portion of the land of deceased which she asserted was not included in the will. The translation of the will which she put in evidence in her proceeding was the same one that was made by the court in the proceeding to admit the will to probate.

Kaimiola Nakookoo Gray duly appealed from the order or decree of the probate court, refusing to grant letters of administration, as petitioned for, and the appeal was duly argued, without objection, in the supreme court of the territory, upon the same translation of the will, and the decree was affirmed.

A motion was then made for a rehearing of the case, and upon that motion, for the first time, ex parte affidavits were used on behalf of the appellant in regard to the translation of the will of testatrix. These affidavits asserted that the translation adopted, and most of it made, by the probate court, *and adopted by the supreme court upon a hearing, without protest or question on her part, was not an accurate translation, and the following was asserted to be the true translation:

"I, the undersigned, a leper residing at Kalaupapa, island of Molokai, territory of Hawaii, make this my last testament concerning all chattels known as mine and in my possession, being in Kalaupapa aforementioned; with sane mind I bequeath all those said goods of mine described as follows, to wit,

"1 Creamed-colored horse,
"1 Bay mare,
"1 Black mare,

"1 Wooden house together with certain other houses, and all other chattels belonging to me, to my husband, David Noholoa, residing at said Kalaupapa and to his heirs

and assigns forever. My heirs shall not have any right to claim these at law.

"In witness whereof I hereunto subscribe my name this 18th day of November, 1901." The court refused to accept such translation or to set aside or correct the translation already made and adopted by it, and thereupon denied the motion for a rehearing, Frear, Chief Justice, dissenting.

From the decree of affirmance, Kaimiola Nakookoo Gray has appealed to this court.

Messrs. David L. Withington, J. Alfred Magoon, and J. Lightfoot for appellant.

Messrs. William L. Stanley, Clarence H. Olson, and Henry Holmes for appellee.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

The sole question in this case is whether property which belonged to testatrix in her lifetime, and was situated outside of the leper island, or settlement, at the time of her death, passed by her will.

The appellant asserts that the translation of the will, although made by one and adopted by both courts below without opposition, and offered on her part in this proceeding, both in the trial court and upon review, is nevertheless, inaccurate; that the translation which she submitted in her motion for a rehearing, as contained, in certain ex parte affidavits, is the more accurate of the two, and, if it were adopted, the original will in such case, as so translated, would not dispose of any property which belonged to the testatrix at the time of her death, situated outside of the leper settlement; and, as no executor was appointed in the will, the petition of the appellant for the appointment of an administrator with the will annexed as to all outside property of which the testatrix died intestate should, as she claims, have been granted, and to that end the order should be reversed.

What is the correct English translation of the original will in this case, written in the Hawaiian language, is a pure question of fact.

The record shows that Judge Kepoikai, judge of the probate branch of the circuit court, second circuit, himself translated, at least in part, the will now before us for construction. The record discloses no objection or opposition to such translation, or any criticism of its accuracy at that time. The supreme court, on appeal, used the same translation, without criticism or opposition, as had been used by the trial court, and. upon that translation, affirmed the decree. Mr. Justice Hartwell, in writing the opinion of the supreme court, said: "The original of the will shows more clearly than

does the evidently defective translation that the intention was to dispose of 'also all the other property known to be mine.' The de cedent evidently knew well what her property at Kalaupapa was, and there is no reason to suppose that she did not know of the property in Honolulu." [18 Haw. 266.] So that whether the translation adopted by the court below and the supreme court was defective or not, the view of the latter court was that a correct translation showed the intention of the testatrix to dispose of all her property, or, as the court said, "also all the other property known to be mine."

As the two courts below have determined the question of fact, we follow our usual course in such cases, and adopt the translation of the will which they have adopted.

The legal question then arising is, What did the testatrix mean by her will? Her intention is to be derived from her language, and we are of opinion that the lower court was correct in its construction as given to us.

A perusal of the will as translated and adopted by the courts below leaves us in no doubt that the testatrix's intention was to give to her husband, not only the property which she left situated at Kalaupapa, but also all other property owned by her, wherever it might be situated and whatever it might be. We do not think she intended to die intestate as to any portion of her property, or to limit her bounty to her husband to such property only as was situated at Kalaupapa. The decree of the Supreme Court of the Territory is therefore affirmed.

SHERIFF OF THE CITY & COUNTY OF
SAN FRANCISCO, State of California, et
al. [No. 320.]
EXTRADITION ( 19*)

PROSECUTION FOR OTHER CRIME OPPORTUNITY TO RETURN. 1. Immunity from trial for an offense committed by a person after his extradition return to the country whence he was exuntil he has been afforded an opportunity to tradited was not given by the provisions of the treaties with Great Britain of August 9, 1842 (8 Stat. at L. 576), and July 12, 1889 (26 Stat. at L. 1508, 1509), or of U. S. Rev. Stat. § 5275, U. S. Comp. Stat. 1901, p. 3596, under which such immunity as to prior offenses only is secured.

[Ed. Note.-For other cases, see Extradition.

Cent. Dig. §§ 22-24; Dec. Dig. § 19.*]