ESTATE OF ROSE F
High Court of American Samoa
PR No. 11-01
December 10, 2002
principles reflected in the contract.
 American Samoa statutes unequivocally exclude communal land
from testamentary devise, intestate succession, and estate administration.
16 Once again, Fa`amausili was not afforded this right at the September
 Communal land is the land ownership concept at the very core of the
Samoan land tenure system.
 Communal land tenure precludes fee simple ownership in favor of
extended family control over land, under the occupancy and use
directions of the family’s sa`o.
 Leases of communal land may not wholly conform to the traditional
occupancy and use of communal land. However, they are statutorily
 Once a leasehold is created, the parties to the lease, and their
executors, administrators, successors and assigns are entitled to have the
contractual terms of the lease respected and upheld.
 The American Samoa Government’s constitutional duty to protect
communal lands from alienation pertains to alienation from American
Samoans to foreigners.
 Court was without authority to award attorney’s fees where estate’s
attorney had asked for them in defending estate from objection to
passing leasehold interest, which was purportedly frivolous and made in
 Where individual, acting as objector in probate action, had actually
raised objection contrary to his authority as objector, said attorney lacked
standing to object and reasonable attorney’s fees were properly awarded
to the estate for the unnecessary expense caused by the objection.
Before RICHMOND, Associate Justice, and ATIULAGI, Associate
Counsel: For Administrator, David P. Vargas
For Objector, Tautai A.F. Faalevao, Pro Se
ORDER DENYING PETITION AGAINST
ESTATE AND ADMINISTRATOR OF ESTATE
On October 15, 2002, objector Tautai A.F. Faalevao (“Tautai”)
petitioned the Court to exclude a certain parcel of the Fano family’s
communal land from the estate of the intestate decedent, Rose F.S.
Turner. Tautai file his petition as a blood member representing the
interest of the Tautai clan of the Fano family.
Tautai’s petition was first heard on November 18, 2002, the same day
scheduled for the hearing on the motion of administrator Rene L.F.
Clemens (“Clemens”) for approval of his final account and reporting and
for distribution of the estate. The Court continued the hearing until
November 25, 2002, to afford Tautai and Clemens the opportunity to
further research and file briefs on the objection issue.
The issue is over Clemens’ inclusion in the inventory of the estate’s
assets the decedent’s leasehold interest in the Fano family’s communal
land. We hold that the leasehold is an asset of the estate.
The leased land is a portion of communal land, known as “Matautu
Ridge at Tulutulu,” containing approximately 4.755 acres, plus a 40 foot
right of way for ingress and egress, containing approximately 1.065
acres, in the Village of Faga`alu, American Samoa. The lease was
executed on July 19, 1990, approved by the Governor, as required by
A.S.C.A. § 37.0221(a), on December 7, 1990, and recorded with the
Territorial Registrar on December 10, 1990. The lease was signed by
Fano Salilo, the Fano family’s sa`o, for himself and on behalf of the
Fano family, as the lessor, and by the decedent, as the lessee. Both
parties committed “their executors, administrators, successors and
assigns” to perform the lease. The term is for 55 years, the maximum
period permitted under A.S.C.A. § 37.0221(a). The rent is $1.00 per
Tautai claims that the parties entered into the lease to provide collateral
for bank financing, a common purpose of communal land leases, and
argues that in the existing absence of any outstanding mortgage, the
lease expired upon the decedent’s death. In this regard, Tautai also
points to paragraph 9 of the lease that provides options for lease
termination upon full satisfaction of a mortgage debt. He asserts that
under the circumstances, termination upon the decedent’s death is
consistent with Samoan custom for the use of family communal land.
 Fundamentally, the lease provided the decedent the right to long-term
occupancy and use of the lease premises. The mortgage financing
authorization is simply permissive and a secondary purpose. Both
parties’ rights and responsibilities under the lease terms are contractual.
Cf. Lindgren v. Betham, 20 A.S.R.2d 98, 101 (App. Div. 1990)
(Damages for breach of lease are determined by general principles of
contract). Both parties clearly intended those rights and obligations to be
binding on their executors, administrators, successors, and assigns. On a
contractual basis alone, therefore, the leasehold is properly included in
the decedent’s estate, and her heirs are entitled to succeed as lessees
under the lease, under the laws of intestate succession. See Hunkin v.
Grisard, 13 A.S.R.2d 38, 40 (Trial Div. 1989).
[2-4] Tautai correctly points out that territorial statutes unequivocally
exclude communal land from testamentary devise, intestate succession,
and estate administration. A.S.C.A. §§ 40.0106, 40.0206, and 40.0302.
Communal land is the land ownership concept at the very core of the
Samoan land tenure system. As an alternative to the prevailing means of
land ownership in fee simple by individuals and other legal entities
generally prevailing in United States jurisdictions, communal land tenure
precludes fee simple ownership in favor of extended family control over
land, under the occupancy and use directions of the family’s sa`o (“head
[5-6] Tautai’s argument, however, widely misses the mark. The concept
of communal land ownership deals with the land itself, not with lesser
interests, such as leasehold, easements, and licenses, having readily
identifiable rights and obligations of a contractual nature. As Tautai
asserts, leases of communal land may not wholly conform to traditional
occupancy and use of communal land, unlike the more customary sa`o
assignment to family members of occupancy and use of areas within the
family’s communal lands. However, leases of communal land are
statutorily authorized. A.S.C.A. § 37.0221. Moreover, the statute does
not prevent either members or nonmembers of the family from becoming
lessees of the family’s communal lands. Once the leasehold is created,
the parties to the lease, and their executors, administrators, successors
and assigns, are entitled to have the contractual terms of the lease
respected and upheld. See Miller & Desatnik Mgmt. Co. v. Bullock, 221
Cal. App. 3d Supp. 13, 17 (Cal. Ct. App. 1990) (fixed termed tenancy
not terminated by death); RESTATEMENT (SECOND) OF PROPERTY § 1.5
cmt. F (same). This result is not fatal in any sense to the integrity of the
communal land system. The underlying land itself does not lose its
character as communal land.
 The family, in this case the Fano family, retains the land as the
family’s communal land. Contrary to Tautai’s contention, our holding is
not violative of the American Samoa Government’s constitutional duty
to protect communal lands from alienation. Timu v. McMoore, 6
A.S.R.3d 41, 43-44 (App. Div. 2002). The duty pertains to alienation
from American Samoans to foreigners. Id.
[8-9] Clemens requests an award of attorney’s fees against Tautai for his
failure to provide any genuine legal authority for excluding the leasehold
from the estate and has caused the estate unnecessary expense. In other
words, the objection is frivolous and not made in good faith. We would
be inclined to agree but for the absence of any High Court decision
directly on point and the need to clearly address it. However, Fano’s
affidavit states that Tautai’s authority to represent him and the Fano
family was limited to ensuring that communal land was not included in
the estate and that Fano wanted the leasehold to pass on to the decedent’s
heirs. Fano’s statement puts in question Tautai’s standing to take on the
objector’s role and certainly establishes that Tautai exceeded his
authority, whether in his own right or on Fano’s behalf, by challenging
inclusion of the leasehold in the estate contrary to Fano’s direction.
Tautai made no effort to contradict Fano’s statement during the hearing.
Under these circumstances, an award of reasonable attorney’s fees,
which we assess at $500.00, to offset the unnecessary expense Tautai’s
action has caused the estate, is in order.
1. The lease of a portion of the Fano family’s land known as “Matautu
Ridge at Tulutulu” to the decedent is included in the decedent’s estate.
2. Tautai shall pay to Clemens, the administrator of the decedent’s
estate, $500.00 as reasonable attorney’s fees to offset the unnecessary
expense of defending against Tautai’s inappropriate objection to
inclusion of the lease in the estate.
It is so ordered.