In re Shun T. Takahashi's Estate

• Decision Date: 23 September 1942
• Docket Number: 8290.
• Citation: 129 P.2d 217,113 Mont. 490
• Parties: In re SHUN T. TAKAHASHI'S ESTATE. BRITELL et al. v. JORGENSEN, Public Administrator of Flathead County.
• Court: Montana Supreme Court

129 P.2d 217

113 Mont. 490

In re SHUN T. TAKAHASHI'S ESTATE. BRITELL et al. v. JORGENSEN, Public Administrator of Flathead County.

No. 8290.

Supreme Court of Montana

September 23, 1942

Appeal from District Court, Eleventh District, Flathead County; Dean King, Judge.

Proceeding in the matter of the estate of Shun T. Takahashi, deceased upon the petition of James Jorgensen, Jr., public administrator of Flathead County, Montana, for issuance to him of letters of administration and the petition of Vivian Takahashi, claiming as surviving widow of the deceased, and asking for the appointment of Claude C. Britell as administrator. From an order granting the petition of the public administrator, and ordering that letters of administration issue to him, Vivian Takahashi and Claude C Britell appeal.

Order affirmed.

MORRIS J., dissenting.

C. W. Gribble, of Whitefish, and Merritt N. Warden and Walchli & Korn, all of Kalispell, for appellant.

Rock D. Frederick, of Whitefish, for respondent.

ANDERSON Justice.

This is an appeal from an order appointing the administrator of an estate.

The deceased, Shun T. Takahashi, was a Japanese alien who died in Flathead county, Montana, on July 23, 1941. The public administrator, James Jorgensen, Jr., applied for letters of administration. The application was opposed by Vivian Takahashi, a white woman, claiming as surviving widow of the deceased, and asking for the appointment of Claude C. Brittell as her nominee. The two petitions were heard together, each contesting the other. There was no will, and the deceased left property within the jurisdiction of the court--a proper case for the appointment of an administrator--and the only question over which there was controversy was as to which of the two applicants was entitled to letters.

The public administrator in his petition refers to Vivian Takahashi, living at Havre, Montana, as the wife of the deceased, but alleges that she is a white woman and therefore was not his lawful wife and cannot claim any right of administration as his surviving widow. He alleges further that the only next of kin of the deceased is his father, Minomatsu Takahashi, residing in Japan, and that therefore, as public administrator he is entitled to letters.

Vivian Takahashi in her petition alleges that she is the surviving widow of the deceased, and that as such she is entitled to letters of administration, and, waiving such right, her nominee is entitled to letters. If she is the surviving widow she should prevail, and the controversy narrows down to the question of the validity of the marriage between her and the deceased.

Upon the hearing the court made an order granting the petition of the public administrator and ordering letters of administration to issue to him. The order did not specifically deny the petition of Vivian Takahashi, but that was its effect. From the order so made, Vivian Takahashi and Claude C. Brittell, her nominee, have appealed.

To sustain her case, Vivian Takahashi showed that she and the deceased were married in Spokane, Washington, on May 18, 1915. In addition to her testimony to that effect there was a written stipulation that they were duly married under the laws of Washington at Spokane on May 18, 1915, and that marriage between a white person and a Japanese was not prohibited by the laws of that state, and that the marriage was there legal and valid. The only question left for determination is whether that marriage may be held valid in Montana.

Marriage between a Japanese and a white person is prohibited in this state. Section 5702, Revised Codes 1935, declares such marriage "utterly null and void" and official solemnization is prohibited with penalty of fine and imprisonment. § 5704, Id. The ban applies not only to marriages contracted within the state but is extended to apply to marriage of residents of the state contracted elsewhere, section 5703 providing that "every such marriage *** hereafter contracted or solemnized without the state of Montana by any person who has, prior to the time of contracting or solemnizing said marriage, been a resident of the state of Montana, shall be null and void within the state of Montana." This law was enacted in 1909 and has remained unchanged ever since.

The phrase "prior to the time of contracting or solemnizing said marriage," as here used, can refer only to the time immediately preceding the marriage. Given its widest meaning it would include any time previous to the marriage, even in the remote past and separated by intervening years of residence elsewhere. This would lead to questionable results, and would carry the reach of the legislation beyond the scope apparently intended by the legislature. In its application to foreign marriages, residence within the state is the condition of the law being applied. It is clear that it was not intended to apply generally to nonresidents, and there is no reason to believe that the legislature intended to single out non-residents who had formerly resided in the state as being controlled by the law. The more reasonable view is that the language employed in speaking of prior residence in the state was intended to have the more restricted meaning as applying to the prior time immediately preceding the marriage.

In construing statutes, words employed should be given such meaning as is required by the context, and as is necessary to give effect to the purpose of the statute; and it is the duty of the court to restrict the meaning of general words whenever it is found necessary to do so in order to carry out the legislative intention. Northern Pac. R. Co. v. Sanders County, 66 Mont. 608, 214 P. 596; Reiche v. Smythe, 13 Wall. 162, 20 L.Ed. 566; Lau Ow Bew v. United States, 144 U.S. 47, 12 S.Ct. 517, 36 L.Ed. 340; 25 R.C.L., Statutes, § 223.

The only prior residence that can be material to the purpose of this law is that which transpires immediately preceding the event in case of marriage outside the state, this being taken as the criterion in determining the residence of the parties at the time the marriage takes place. So construed, we have a law which prohibits marriage in this state between Japanese and whites and which extends the ban to such marriages of its residents solemnized elsewhere as invalid within the state.

THere is no contention that the state may not prohibit such marriages within its own borders, but question is raised as to the application of the law to marriages solemnized elsewhere. Appellants rely on the general rule that a marriage valid where made will be held valid everywhere, and to show that this rule is the law in Montana they cite section 5707 of the Revised Codes of 1935, which provides that "all marriages contracted without the state, which would be valid by the laws of the country in which the same were contracted, are valid in this state." We find exceptions thereto, also by statute, among them, as provided by sections 5702 and 5703, Revised Codes, those which prohibit such marriages as here considered and by which they are declared to be absolutely null and void. Such marriages are thereby taken out of the general rule and are not governed by section 5707. 38 C.J. 1277.

It is the policy of our law that there shall be no marriage between white persons and Japanese. To make that policy effective such marriage within the state is forbidden; and our own residents are not permitted to circumvent the law by marriage outside the state. Such marriage our law declares to be null and void and of no avail within the state.

A number of states have similar legislation prohibiting marriage between certain races, and such laws have been sustained by the courts. Kinney v. Commonwealth, 30 Grat., Va., 858, 32 Am.Rep. 690; State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L.R.A., N.S., 800; Eggers v. Olson, 104 Okl. 297, 231 P. 483. See, also, 38 C.J. 1217; 35 Am.Jur., Marriage, §§ 167, 173, 174.

The control and regulation of marriage is a matter of domestic concern within each state. In the adoption of policies in respect thereto, which in its judgment is promotive of the welfare of its society and of the individual members thereof, the state is sovereign and not subject to the control of the Federal Government nor of the laws of any other state. 35 Am.Jur., Marriage, §§ 11, 167; 38 C.J. 1275; Restatement, Conflict of Laws, § 132; Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Toler v. Oakwood, etc., Corporation, 173 Va. 425, 4 S.E.2d 364, 127 A.L.R. 430; Hanson v. Hanson, 287 Mass. 154, 191 N.E. 673, 93 A.L.R. 701; Ex parte Soucek, 7 Cir., 101 F.2d 405; Murphy v. Murphy, 249 Mass. 552, 144 N.E. 394.

The rule of comity does not require that a state shall sanction within its borders that which is repugnant to its own law. The question has frequently arisen in connection with the regulation of marriage, and the complete sovereignty of each state in the determination of what marriages of its own residents it will sanction is the universal rule. Toler v. Oakwood, etc., Corporation, supra.

The case of Cross v. Cross, 110 Mont. 300, 102 P.2d 829, cited by appellants, is not in point. The marriage there under consideration was not void but only voidable. It was not a marriage prohibited by the laws of this state.

The general rule as to recognition of foreign marriages valid in the state where contracted is referred to and applied in a number of other decisions of this court. In none of those cases, however, was the marriage in question obnoxious to the laws of this state. In the case of In re Huston's Estate, 48 Mont. 524, 139 P. 458, there was no impediment to the marriage of the parties under our law, and a marriage between them in the state of Washington, legal and valid under the laws...