DECISION

Meapala Ma’ae, a young man of Nuuuli, filed his application with the Registrar of Titles to have the land known as Vaitele near the Tafuna Airport registered as his individually owned property. Mataafa filed an objection to such proposed registration in the style of “Mataafa of Nuuuli for Ma’ae Lio deceased.” Hence this litigation. Sec. 905 of the A. S. Code. A survey of the land was filed with the application. Prior to the hearing the Court viewed the land in the presence of the interested parties. At the hearing it became apparent that Mataafa was really claiming the land as the property of the heirs of Ma’ae Lio, deceased. We shall treat his objection, therefore, as if it had been made in the name of such heirs. It was so considered by the parties and the Court at the hearing.

*576The undisputed testimony was to the effect that the surveyed tract is composed of two lesser tracts. One of the two lesser tracts was given to Meapala’s mother as her individually owned property by the Lavatai family. Mataafa claimed that the donor was the Usoalii family. However, the Lavatai family is included in the Usoalii. But be that as it may the fact of gift is the material thing, not the name of the donor. The Lavatai himself testified that the Lavatai family was the donor, and we think, considering all the evidence on the point, that that is correct. This lesser tract given to Meapala’s mother lies in the southwest part of the surveyed tract offered for registration.

The other lesser tract lies in the northeast part of the surveyed tract. It was the gift of the Savusa Soosemea many years ago either to Ma’ae Lio or to Ma’ae Lio and Tupelu, his son. Savusa Vae testified as to the fact of the gift. Parts of his testimony indicate that the gift was made to Ma’ae Lio only; other parts indicate that it was to Ma’ae Lio and Tupelu. When the Court visited the land prior to the hearing Savusa told the judges that the gift was to Ma’ae Lio. He made no mention of Tupelu as one of the donees. Tupelu is the blood son of Ma’ae Lio. He is the present Ma’ae and the blood father of proponent Meapala.

At the hearing objector Mataafa admitted that the lesser tract lying in the southwestern part of the surveyed tract had been a gift to Meapala’s mother and he made no claim to that part. That part is separated from the other part, the gift of .the Savusa, by a boundary having a bearing of S 53°31'20// E and a length of 400.25 feet. At the instance of the Court, this boundary line between the two lesser tracts was marked in red on the survey by J. Hall who made the original survey. Mr. Hall calculated mathematically the bearing and length of this dividing'boundary. At the hearing all parties agreed that the foregoing bofindary was the correct dividing line between the two lesser tracts.

*577While Meapala paid for the survey and offered the entire tract for registration in his own name as the individual owner, nevertheless we are convinced from the surrounding circumstances and the evidence that the part of the surveyed tract which we find to have been given by the Lavatai family to Meapala’s mother has been in turn given by her not to Meapala alone, but to Meapala and his sister Meavali. When Meapala was questioned as to whether his sister had any rights in the land, he replied “Myself and my sister” meaning that they owned it jointly. It is our conclusion that the part of the surveyed tract lying southwest of the boundary having the bearing S 53°31'20" E, length 400.25 feet and marked in red on the survey should be registered in the name of proponent Meapala and his sister Meavali as tenants in common and we so hold.

We shall now consider the other lesser tract lying north and east of the foregoing boundary line. It is agreed by all parties that this part was a gift from the Savusa Soosemea made many years ago. The only dispute is whether it was given by the Savusa to Ma’ae Lio alone or to Ma’ae Lio and his blood son Tupelu, the present Ma’ae and the father of proponent Meapala. The witnesses for Meapala testified that it was the latter while Mataafa’s witnesses testified it was the former.

The Court called Savusa Vae as a witness. He testified that he was present when the gift was made; that it was in return for a fine mat given by Ma’ae Lio to Savusa Soosemea when one Igafo, an old man who was a Savusa family member, was taken back by Ma’ae Lio to the Savusa family after he (Ma’ae) had cared for Igafo for many years. As heretofore stated parts of Savusa’s testimony at the hearing indicate that the gift was made to Ma’ae Lio alone; other parts that it was to Ma’ae Lio and Tupelu (the blood father of proponent Meapala and younger blood brother of objector Mataafa). And we have already said that when *578the Court viewed the land in the presence of the parties Savusa Vae told the judges that the gift was from the Savusa to Ma’ae Lio without any mention of Tupelu. Savusa Vae is 66 years old. He placed the gift as being made about 1905 or 1906.

Tupelu (now the Ma’ae and father of Meapala) testified that he was present at the time the gift was made and that it occurred before the Government was established in 1900. When asked how long before he said “My only guess about 40 or 20 years but I do not remember the years.” He was asked how tall he was at the time and he indicated about three to three and one half feet. If he was correct as to his height at the time, he was obviously less than ten years old. He is 63 years old now. He testified that the gift was to his father Ma’ae Lio and himself.

Mataafa, Tupelu’s older brother and the objector, testified that he was present when the Savusa made the gift; that it was made before the establishment of .the Government in 1900 and that the gift was to Ma’ae Lio, his father only, and not to Ma’ae Lio and Tupelu together, Mataafa is 72 years old.

Falegaui, the daughter of Savusa Soosemoa who made the gift and sister of witness Savusa Vae, testified as to her knowledge of the gift. She was confused as to whether the gift was made to Ma’ae Lio or to Ma’ae Lio and Tupelu. However, her final statement on the witness stand was “I confirm Savusa’s testimony that the land was given to Lio by Savusa.”

We are convinced .that the confusion in the testimony of both Savusa Vae and his sister arises from the fact that the gift was made many, many years ago and that the passage of time has dimmed their memories. We believe that the gift was made before the Government was established more than 50 years ago. Both Ma’ae Tupelu and Mataafa so testified. If Tupelu was only three to three and a half *579feet tall at the time (he as before stated is 63 now) it must have been more than 53 years ago. An average 10-year-old boy (and Tupelu is a man of about average height) is over three and one half feet tall.

Despite the contradictory testimony, we believe that the evidence preponderates in favor of the view that the gift from Savusa Soosemea was to Ma’ae Lio only, and not to Ma’ae Lio and Tupelu. It is most unlikely that a matai would make a gift of land to a boy less than 10 years old. Of course we know that Tupelu claims that he helped take care of the old man Igafo. But we think that any care Tupelu could have given when he was so young was so slight, if there was any care at all, that it could hardly have occasioned a gift of land to him from Igafo’s matai Savusa. As stated before, we think the evidence preponderates in favor of the view that the gift was to Ma’ae Lio only and we so find. “It is elementary that in civil cases a mere preponderance of the proof is all that is necessary to establish the point in issue ...” I Jones, Evidence (4th ed.) Sec. 5. The evidence shows that this land is individually owned; that it was given to Ma’ae Lio, as an individual and not in his capacity as the matai of the Ma’ae family.

Having determined that the part of the surveyed tract which was the gift of the Savusa became the individually owned property of Ma’ae Lio, we shall determine in whom the title thereto is now vested, Ma’ae Lio being dead.

Ma’ae Lio died intestate leaving surviving him three sons, viz. Tupelu, Mataafa and Nimo. Nimo became the Seui. He died leaving three surviving children, viz. Fua, a daughter living in Yaitogi, Vaealuga, a student in Malua College in Upolu, and Sivana living in Upolu. Upon Ma’ae Lio’s death, the title to the gift from the Savusa vested in Tupelu, Mataafa and Nimo, each acquiring an undivided one third interest in the property. Upon Nimo’s death intestate, his undivided third vested in Fua, Vaealuga and *580Sivana, each of the latter three acquiring an undivided one-ninth interest in the property.

Ma’ae Tupelu was the principal witness for Meapala, the proponent. He consented to the survey of the entire tract by Meapala. We conclude, particularly from the circumstantial evidence in this case, that Ma’ae Tupelu has given his interest in the land comprising the Savusa gift to Meapala and Meavali, his son and daughter respectively.

In accordance with the Court’s findings as to the facts, it is ORDERED, ADJUDGED and DECREED that that part of the surveyed tract offered for registration by Meapala lying southwest of the boundary marked in red on the survey and having a bearing of S 53031/20" E, length 400.25 feet, shall be registered as the individually owned land of Meapala and Meavali, as tenants in common; and it is further ORDERED, ADJUDGED and DECREED that that part of the said surveyed tract lying northeast of said boundary shall be registered as the individually owned land of Meapala, Meavali, Mataafa, Fua, Vaealuga and Sivana as tenants in common; and it is further ORDERED, ADJUDGED and DECREED that the respective undivided interests of each of said last-men.tioned tenants in common in said part of said tract lying northeast of said boundary, bearing S 53°31/20" E, length 400.25 feet, are as follows:

Mataafa, one-third; Fua, one-ninth;

Meapala, one-sixth; Vaealuga, one-ninth;

Meavali, one-sixth; Sivana, one-ninth.

The Registrar of Titles will be advised as to the provisions of this decree and will register the surveyed tract in accordance therewith.

Since Meapala paid for having the survey made and part of his expenditure is inuring to the benefit of objector Mataafa, the Court considers it equitable and just that Mataafa should pay half the court costs of $25.00 and Mea*581pala the other half. It is therefore ORDERED that Mataafa pay $12.50 and Meapala pay $12.50 of said court costs within 30 days.