Godfrey v. Rowland

• Decision Date: 16 January 1905
• Parties: FRANK GODFREY, TRUSTEE FOR THOMAS METCALF, v. HELEN ROWLAND, HING CHUNG, J. F. FRANCIS, KONDO, D. O. HAMMOND, JOSE DO ESPIRITO SANTO, W. O. SMITH, TRUSTEE, AND B. J. GALLAGHER.
• Court: Hawaii Supreme Court

16 Haw. 377

FRANK GODFREY, TRUSTEE FOR THOMAS METCALF,

v.HELEN ROWLAND, HING CHUNG, J. F. FRANCIS, KONDO, D. O. HAMMOND, JOSE DO ESPIRITO SANTO, W. O. SMITH, TRUSTEE, AND B. J. GALLAGHER.

Supreme Court of the Territory of Hawai‘i.

Submitted October 4, 1904.

Decided January 16, 1905.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

In order to prove a legal marriage it is not necessary to prove that a license to marry was issued. The license will be presumed from the celebration of the marriage. Nor need any ceremony be shown to prove a marriage.

The provisions of sections 1870 and 1871, Civil Laws, requiring a license to marry to be obtained, are directory only, and a failure to comply with the same does not render a marriage void.

It is not necessary to show, in order to prove a marriage, that a record of the issuance of a marriage license was kept by the officer who issued the same.

Evidence of adultery of the mother cannot be received to prove illegitimacy, if the husband and wife were living together at the time when the child was conceived.

The presumption of legitimacy may be overcome by proof. The proof need not go to the extent of showing the impossibility of legitimacy, neither need it remove every reasonable doubt; it must however be clear, distinct and convincing. A showing of improbability of legitimacy is not sufficient.

The presumption of innocence may be offset by the presumption that relations between a man and woman, illicit in the beginning, continued so until proof of a change of status should be offered.

A deed of a life tenant, joined in by a remainder man, will not defeat a contingent estate in this jurisdiction. The common law respecting merger not adopted in Hawaii.

Robertson & Wilder, F. E. Thompson and C. F. Clemons for plaintiff.

Kinney, McClanahan & Cooper for defendants.

FREAR, C.J., HARTWELL AND HATCH, JJ.

OPINION OF THE COURT BY HATCH, J.

This is an action of ejectment, coming here on a bill of exceptions from the circuit court of the first circuit. The plaintiff claims as trustee for Thomas Metcalf one undivided half of certain lands situated on the northwest corner of Beretania and Alapai streets in Honolulu. This land was the property of Theophilus Metcalf, deceased, who devised it to his son Frank for life, with remainder to Frank's children lawfully begotten, if any, with remainder over in case of failure of issue. The life tenant died in the year 1900. The plaintiff contends that he represents the only lawfully begotten child of Frank Metcalf, to wit, Thomas Metcalf, who was living at the date of the death of his father. The legitimacy of Frank Metcalf was in issue, and also the fact of a marriage between Frank's father and mother. The jury returned the following verdict:

“We the jury in the above entitled cause find for the defendants in that the evidence fails to show that a record of the issuance of the marriage license was kept as required by law.

(Sgd.) E. E. MOSSMAN, Foreman.

Honolulu, Oahu, September 30, 1903.”

The plaintiff excepted to the verdict and filed a motion for a new trial.

The first exception relied upon by the plaintiff is the exception to the giving of defendants' requested instruction No. 7, being subdivision (a) of plaintiff's exception No. 13.

“(a) In order to find a marriage between Frank and Alice Metcalf, you must find that a license to marry was obtained and a marriage ceremony performed, although the license need not necessarily be produced in court to establish this.”

This instruction does not correctly state the law as to the necessity for a ceremony of marriage. It is also faulty on account of its vagueness in respect to the necessity to prove a license to marry. The law in force in Hawaii at the date of the marriage in question was as follows:

Civil Laws, “Sec. 1869. It shall not be lawful for any minister of religion of any sect whatsoever, or any other person, to perform the marriage ceremony within this Kingdom, without first obtaining from the Minister of the Interior a license to celebrate marriage.”

“Sec. 1870. In order to make valid the marriage contract, it shall be necessary that the respective parties be not to each other within the fourth degree of consanguinity; that the male at the time of contracting the marriage shall be at least seventeen years of age, and the female at least fourteen years of age; that the man shall not at the time have any lawful wife living and that the woman shall not at the time have a lawful husband living; and it shall in no case be lawful for any person to marry in this Kingdom without a license for that purpose duly obtained from the agent duly appointed to grant licenses to marry.”

“Sec. 1871. The marriage rite may be performed and solemnized by any person duly authorized by law, upon presentation to him of a license to marry, as prescribed by the foregoing section; who may be at liberty to receive the price to be stipulated by the parties, or the gratification tendered to him.”

There is nowhere to be found in our law a provision requiring a ceremony. The most that can be said is that the statute implies a ceremony. Sec. 1871 is permissive merely. It has not even the force of a directory enactment. Sec. 1870 is mandatory as to all its provisions except that relating to a license. That provision must be held to be simply directory. By the universal rule of construction applied to statutes regulating marriage, wherever it is possible to do so, the provisions must be held to be directory and not mandatory. They are held mandatory only when accompanied by provisions of nullity; if it is provided that upon the failure to perform certain steps made essential to the validity of a marriage such marriage shall be null and void, the provision is held mandatory, but not otherwise. All of the provisions of section 1870, except that in respect to licenses, are framed in language mandatory in nature. It becomes clear that these were intended as mandatory when the enactments in regard to annulment of a marriage are considered. By section 1920 of the Civil Laws all of the requirements which we have called mandatory in section 1870 are repeated as grounds for declaring a marriage null and void. The failure to obtain a marriage license, as required by section 1870, however, is not made a ground for declaring a marrigae void. There being then, no provision of nullity connected with this requirement, it must be held to be directory only; and a failure to comply could not be held to be a ground of nullity, nor to affect the validity of a marriage entered into without it.

In Meister v. Moore, 96 U. S. 76, the court says: “Marriage is everywhere regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides a remedy for its enforcement the remedy is exclusive. No doubt, a statute may take away a common law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provision may be construed as merely directory instead of being treated as destructive of a common law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage.”

In Parton v. Hervey, 1 Gray 119, the court says: “But the effect of these and similar statutes is not to render such marriages, when duly solemnized, void, although the statute provisions have not been complied with. They are intended as directory only, upon ministers and magistrates, and to prevent, as far as possible, by penalties on them, the solemnization of marriages when the prescribed conditions and formalities have not been fulfilled. But in the absence of any provision, declaring marriages, not celebrated in a prescribed manner, or between parties of certain ages, absolutely void, it is held that all marriages, regularly made according to the common law, are valid and binding, although had in violation of the specific regulations imposed by statute.”

See also Bishop on Marriage and Divorce, 283. (6 Ed.) Bishop says: “Marriage existed before statutes, it is a natural right, it is favored by the law. Hence, in reason, any commands which a statute may give concerning its solemnization, should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void that which is done in disregard thereof.”

In Republic v. Waipa, 10 Haw. 442, it was held that it was not necessary to prove that a license to marry had been obtained in order to support a conviction for adultery. The court says: “On the point that the prosecution must prove that a license to marry must be proven, we hold that this is not necessary. ‘When the law casts upon an official person a duty connected with his office, and the time for its performance transpires, the prima facie presumption is that it is done.’ 1 Bishop on Marriage and Divorce, Sec. 450. The presumption holds good until the contrary is shown. It was therefore not necessary to produce the license to marry nor to prove that the agent who granted it had the requisite authority.” The reason for supporting this presumption in a case where the issue is one of inheritance is much stronger than in a case of criminal prosecution for adultery.

In Cartwright v. McGowan, 121 Ill. 388, the court lays down this rule: “When the celebration of a marriage is once shown, the contract of...