Parke v. Jane S. Parke, Annie H. Parke, Bernice P. Walbridge & Hawaiian Trust Co.

• Citation: 25 Haw. 397
• Decision Date: 06 April 1920
• Docket Number: No. 1177.,1177.
• Parties: FRANCES L. PARKE v. JANE S. PARKE, ANNIE H. PARKE, BERNICE P. WALBRIDGE AND HAWAIIAN TRUST COMPANY, LIMITED, AN HAWAIIAN CORPORATION, AS ADMINISTRATOR OF THE ESTATE OF WILLIAM C. PARKE, DECEASED.
• Court: Supreme Court of Hawai'i

25 Haw. 397

FRANCES L. PARKE

v.JANE S. PARKE, ANNIE H. PARKE, BERNICE P. WALBRIDGE AND HAWAIIAN TRUST COMPANY, LIMITED, AN HAWAIIAN CORPORATION, AS ADMINISTRATOR OF THE ESTATE OF WILLIAM C. PARKE, DECEASED.

No. 1177.

Supreme Court of the Territory of Hawai‘i.

Argued February 24, 1920.

Decided April 6, 1920.

APPEAL FROM CIRCUIT JUDGE FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

It is provided in section 2905 R. L. 1915 (Sec. 1870 Civ. L. 1897) that “it shall in no case be lawful for any persons to marry in this Territory without a license for that purpose duly obtained from an agent duly appointed to grant licenses to marry in the judicial district in which the marriage is to be celebrated.” This provision while clearly prohibitory contains no words of nullity.

Section 8 R. L. 1915 (Sec. 8, Civ. L. 1897), which reads: “Whatever is done in contravention of a prohibitory law is void although the nullity be not formally directed,” expressly renders null whatever is done in contravention of a prohibitory law. These two sections must be considered in pari materia.

A license is a prerequisite to a valid marriage in this Territory. Marriages per verba de praesenti, as recognized by the common law, are void here. Godfrey v. Rowland, 16 Haw. 377, holding to the contrary, overruled.

W. B. Pittman ( Andrews & Pittman on the brief) for complainant.

A. G. M. Robertson and W. F. Frear ( Frear, Prosser, Anderson & Marx and Robertson & Olson on the brief) for respondents.

COKE, C. J., KEMP AND EDINGS, JJ.

OPINION OF THE COURT BY COKE, C. J.

This is an appeal prosecuted by complainant-appellant from a decree of the circuit court of the first judicial circuit sitting in equity dismissing her bill of complaint. A summarized history of the controversy is as follows: William C. Parke, a resident of Honolulu, died intestate on November 17, 1917, leaving an estate in the Territory of Hawaii consisting of real and personal property of the approximate value of $250,000. Following his death and upon the petition of his sisters, the respondents Jane S. Parke, Annie H. Parke and Bernice P. Walbridge, and who claim to be his heirs, the respondent Hawaiian Trust Company, Limited, a corporation, was by the probate court of the first judicial circuit duly appointed administrator of said estate. In July 1918 the administrator filed its final accounts together with a petition for the approval thereof and for an order of distribution. The appellant, who styles herself Frances L. Parke, filed in the proceeding in probate a petition alleging that she was at the time of the death of William C. Parke his lawful wife and one of his heirs at law and as such was entitled to one-half of his estate. The respondents interposed pleas to the petition alleging that the three above-named sisters of William C. Parke are the sole and only heirs at law of decedent, denying that petitioner was his wife and setting up a release claimed to have been executed by the appellant under the name of Fannie Kunewa on January 26, 1918, whereby she had forever discharged the estate of William C. Parke and his executors, administrators and heirs of and from all manner of actions, suits or demands in law and in equity which she might have had against the estate of William C. Parke or his representatives. The release reads as follows: “Know all Men by these Presents: That for and in consideration of certain payments of money made and to be made to me by William L. Whitney, trustee, of Honolulu, Territory of Hawaii, I, Fannie Kunewa, of said Honolulu, do hereby remise, release and forever discharge the estate of William C. Parke, deceased, his executors, administrators, heirs and assigns of and from all manner of actions, suits or demands in law or in equity, which against the said estate of William C. Parke, his administrators, heirs or assigns I have had, now have, or which my heirs, executors, administrators or assigns or any of them, can, shall or may have by reason of any matter, cause or thing whatsoever. In Witness Whereof I have hereunto set my hand this 26th day of January, 1919. (Sgd) Fannie Kunewa. Witness to Signature (Sgd.) Wm. L. Whitney.”

This release constituting a bar to petitioner's claim in the probate court she filed her bill in equity in the circuit court to have the respondents enjoined from using said release and for a cancellation thereof. The averments of the bill in equity set forth that the complainant (appellant herein) became the lawful wife of William C. Parke on the 13th day of November, 1912, and that she thereafter lived with him as his wife until the date of his death, November 17, 1917, and as such wife she is entitled to a distributive share of the estate; that complainant signed the purported release at the instance of Wm. L. Whitney not knowing the contents thereof and under a misapprehension of the effect thereof; that at the time of the execution of the release she was in ill health; that she was confused and that she understood that she was merely signing a receipt for temporary maintenance and had no thought or intention that the document was in fact a settlement of, or in any way affected, her dower right in the estate. The respondents joined issue and voluminous testimony was introduced at the trial.

It is not claimed by the appellant that any license to marry was first obtained or that there was a marriage celebrated by the publication of bans or a public wedding of any nature, but she insists that she and William C. Parke by mutual consent and agreement took each other per verba de praesenti as husband and wife on the 13th day of November, 1912, and lived together as such until his death. In other words, it is contended by the appellant that her marriage to Parke was a common law marriage as distinguished from a statutory marriage which prescribes that a license to marry must first be obtained and contemplates a ceremony conducted by a person duly authorized to perform marriages in this Territory. It is admitted that there are no children as the issue of this alleged marriage.

The judge of the court below in an opinion which admirably and adequately reviewed the law and the evidence found that the relations existing between appellant and Parke were meretricious rather than matrimonial; that there was neither a common law marriage nor any marriage existing between the parties; and further found that appellant at the time she signed the release in question had no claim of any legal character against the estate of William C. Parke; that at the time she was not under misapprehension or duress nor was there any other circumstance which might warrant a revocation of the release.

It was argued in the court below by counsel for appellees that a common law marriage is not valid in this Territory. But the trial judge having before him the opinion of this court rendered in Godfrey v. Rowland, 16 Haw. 377, where the validity of a common law marriage in Hawaii is upheld he properly deemed himself to be bound by that opinion. Counsel again present the same argument here.

We of course labor under no such limitation as circumscribed the actions of the circuit judge but out of regard for the certainty and stability of the law this court would be loath to set aside one of its former decisions and especially where to do so property rights and personal relations might be disturbed. We think, however, that slight, if any, hardship would follow as a result of our refusal to acquiesce in the decision laid down in the Godfrey-Rowland case. If that decision is wrong it should be overruled at this time so that the public may not any longer be misled by it....